T.C. Memo. 2021-119
UNITED STATES TAX COURT
RONALD M. GOLDBERG, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 12871-18L. Filed October 19, 2021.
Ronald M. Goldberg, pro se.
Eugene A. Kornel, Alexander R. Roche, and Mayer Y. Silber, for
respondent.
MEMORANDUM OPINION
PARIS, Judge: This case is before the Court on a petition for review of a
Notice of Determination Concerning Collection Action(s) under Section 6320
and/or 6330 dated June 1, 2018, sustaining a notice of intent to levy for petitioner’s
Served 10/19/21 -2-
[*2] 1998 and 2000 tax years (notice of determination). 1 Petitioner, Ronald
Goldberg, was a partner in two oil and gas partnerships. The partnerships were
both subject to audit and litigation procedures under the Tax Equity and Fiscal
Responsibility Act of 1982 (TEFRA), Pub. L. No. 97-248, sec. 402(a), 96 Stat.
at 648, which resulted in administrative adjustments to the partnerships’
informational tax returns. Because partnerships are not themselves taxable entities,
the notice of determination sought to enforce the assessment of Mr. Goldberg’s
share of the partnership-level adjustments against him in his individual capacity as
a tax-paying partner.
Mr. Goldberg and the Commissioner have both filed motions for summary
judgment. The central issue is whether Mr. Goldberg is prohibited from now
challenging his underlying tax liabilities because of his failure to challenge an
earlier Notice of Federal Tax Lien Filing and Your Right to a Hearing under
section 6320 (NFTL filing) or because of his nonparticipation in the even earlier
TEFRA proceedings and Tax Court litigation.
1 Unless otherwise indicated, all Rule references are to the Tax Court Rules of Practice and Procedure, and all section references are to the Internal Revenue Code in effect at all relevant times. -3-
[*3] This case is ripe for summary judgment because there are no genuine
disputes of material fact; the only questions remaining before the Court are
questions of law. For the reasons set forth below, the Court will deny Mr.
Goldberg’s motion and grant the Commissioner’s motion.
Background
The following facts are derived from the parties’ pleadings and motion
papers, including exhibits and affidavits. See Rule 121(b). Petitioner resided in
Illinois when he timely filed his petition.
Mr. Goldberg was an investor and partner in two oil and gas partnerships:
(1) Matador Arch Program (Matador) and (2) Alpha Oil Program (Alpha). Mr.
Goldberg timely filed joint income tax returns for his 1998 and 2000 taxable
years. 2 The salient facts are as follows.
Both Matador and Alpha were subject to the audit and litigation procedures
found at sections 6221 through 6234, commonly referred to as TEFRA. The
Commissioner timely assessed the tax and penalties related to the TEFRA
2 Mr. Goldberg filed a joint return with his spouse, Gail Goldberg. This matter relates only to Mr. Goldberg; Mrs. Goldberg has a separate action pending before this Court. See Goldberg v. Commissioner, T.C. Dkt. No. 13148-18L. For simplicity, and since Mr. and Mrs. Goldberg have separate pending actions, the Court will refer to Mr. Goldberg’s tax returns and taxable years in the singular throughout, despite the Goldbergs’ having filed joint returns. -4-
[*4] proceedings for tax year 1998 (Matador) on September 9, 2014, and for tax
year 2000 (Alpha) on April 28, 2014. On April 7, 2015, the Commissioner issued
Mr. Goldberg an NFTL filing informing him that a notice of Federal tax lien was
filed for his 1998 and 2000 income tax liabilities.
Mr. Goldberg did not timely challenge the NFTL filing by requesting a
section 6320 hearing or submitting Form 12153, Request for a Collection Due
Process or Equivalent Hearing.3
Levy and CDP Hearing
On December 2, 2015, the Commissioner issued Mr. Goldberg a Letter
1058, Final Notice of Intent to Levy and Notice of Your Right to a Hearing, for his
1998 and 2000 taxable years (levy notice). Mr. Goldberg timely challenged the
levy notice by submitting Form 12153 on December 20, 2015, requesting, among
other things, a collection due process (CDP) hearing.
3 In response to the NFTL filing, Mr. Goldberg made an untimely request for a collection due process hearing. The Commissioner granted Mr. Goldberg an equivalent hearing and then issued a decision letter. A decision letter arising from an equivalent hearing is not a notice of determination sufficient to invoke this Court’s jurisdiction under sec. 6320 or 6330. Kennedy v. Commissioner, 116 T.C. 255, 262-263 (2001). By order dated October 9, 2018, this Court dismissed for lack of jurisdiction Mr. Goldberg’s petition inasmuch as it challenged the merits of the equivalent hearing. -5-
[*5] Mr. Goldberg’s CDP hearing was assigned to a settlement officer in the
Internal Revenue Service (IRS) Office of Appeals (Appeals). Prior to the CDP
hearing, the settlement officer verified that all applicable laws and procedures had
been met. This included verifying that she had no prior involvement with Mr.
Goldberg and reviewing the case transcripts to confirm that the assessment for
each tax period listed on the CDP notice was valid and proper and that notice had
been mailed to Mr. Goldberg’s last known address. On April 14, 2016, the
settlement officer issued a letter to Mr. Goldberg confirming that the IRS received
his request for a CDP hearing; in return, the letter asked Mr. Goldberg to provide
his legal grounds for raising the liability issue, as well as any information
pertaining to an alternative collection method. Lastly, the settlement officer
reviewed the prior Tax Court partnership decisions relating to Mr. Goldberg’s
partnership interests.
The CDP hearing was held on June 8, 2016, and the settlement officer had
additional discussions with Mr. Goldberg’s representative through December 2017.
Mr. Goldberg did not propose any collection alternatives during the hearing or any
of the additional discussions; instead, he challenged his underlying income tax
liabilities, which included the underlying TEFRA adjustments. The settlement
officer informed Mr. Goldberg during a December 1, 2017, telephone conference -6-
[*6] that Mr. Goldberg could no longer challenge his underlying income tax
liabilities because they were litigated at the partnership level in the Tax Court and
thus could not be challenged at the partner level in collections. As a result,
Appeals sustained the proposed collection action in a notice of determination dated
June 1, 2018.
Previous TEFRA Proceedings
Long before the NFTL filing, levy notice, and CDP hearing, both
partnerships--Matador and Alpha--were the subjects of separate TEFRA
proceedings. The Commissioner examined Matador’s 1998 information return and
Alpha’s 2000 information return. He then issued Mr. Goldberg a notification of
beginning of administrative proceeding (NBAP) on September 4, 2001, for
Matador’s 1998 tax year. The Commissioner similarly issued Mr. Goldberg an
NBAP on October 8, 2002, for Alpha’s 2000 tax year. Mr. Goldberg maintains
that he never received the respective NBAPs.
On November 27, 2007, the Commissioner issued a notice of final
partnership administrative adjustment (FPAA) to Mr. Goldberg for Matador’s 1998
tax year. On December 3, 2007, the Commissioner issued an FPAA to Mr. -7-
[*7] Goldberg for Alpha’s 2000 tax year.4 Matador’s tax matters partner (TMP),
Ogden Drilling Management, Inc., a Utah corporation, timely petitioned this Court
on February 19, 2008, for readjustment of the partnership items set forth in
Matador’s FPAA. See Matador Arch Program, Ogden Drilling Mgmt., Inc., Tax
Matters Partner v. Commissioner, T.C. Dkt. No. 4192-08. Carthage Oil
Management Corp., a Utah corporation, as Alpha’s TMP, also timely petitioned
this Court on February 19, 2008, for readjustment of the partnership items set forth
in Alpha’s FPAA. See Alpha Oil Program, Carthage Oil Mgmt. Corp., Tax
Matters Partner v. Commissioner, T.C. Dkt. No. 4113-08.
During the pendency of the TEFRA proceedings in the Tax Court, Mr.
Goldberg sent the Commissioner a letter, dated October 5, 2010, stating Mr.
Goldberg’s position that the period of limitations had expired with respect to the
TEFRA proceedings. The Commissioner’s counsel responded on October 8, 2010,
and explained why the Commissioner took the position that the period of
limitations had not expired: “Indeed, the * * * [TMPs] in both the Alpha Program
and Matador Program cases have challenged and are continuing to challenge the
4 The record includes certified mailing lists for the Matador and Alpha FPAAs. Furthermore, Mr. Goldberg makes no allegation that he failed to receive either FPAA. -8-
[*8] Service’s determinations. If you continue to disagree with respondent
regarding this matter and wish to pursue it further, you should pursue it formally in
the Alpha Program and Matador Program cases.” However, Mr. Goldberg never
formally pursued his period of limitations argument by raising it in the TEFRA
proceedings as an affirmative defense under Rule 39.
This Court entered final decisions regarding Matador’s and Alpha’s TEFRA
proceedings, pursuant to Rule 248(b), on June 12 and June 13, 2013, respectively.
None of Matador’s or Alpha’s partners filed any objections to the settlements. The
Court’s decisions became final without appeal 90 days after the decisions were
entered on September 10, 2013, for Matador, and September 11, 2013, for Alpha,
pursuant to Rule 190.
Assessment of Partnership Item Adjustments
The Commissioner sent a letter to Mr. Goldberg on February 13, 2014, along
with Form 4549-A, Income Tax Examination Changes, explaining the adjustments
to Mr. Goldberg’s 2000 income tax return flowing from the partnership-level
adjustments in this Court’s final decision in the Alpha case. Mr. Goldberg filed a
protest on March 14, 2014, arguing his disagreement with the adjustments. The
Commissioner responded to Mr. Goldberg in an August 20, 2014, letter in which
the Commissioner stated that Mr. Goldberg’s protest would not be considered -9-
[*9] because it raised substantive issues which should have been raised during the
TEFRA proceedings. See sec. 6230(c)(4).
On September 9, 2014, the Commissioner sent Mr. Goldberg a Letter 4735,
Notice of Computational Adjustment,5 along with Form 4549-A, setting forth the
adjustments to Mr. Goldberg’s 1998 income tax return flowing from the
partnership-level adjustments in this Court’s final decision in the Matador case.
The Letter 4735 was sent via the regular mail service of the U.S. Postal Service
(USPS). See Internal Revenue Manual pt. 4.31.3.13.6.1(8) (June 11, 2013).
Regarding the partnership-level proceedings, Mr. Goldberg alleges that he
never received an NBAP for either Matador or Alpha and cites the certified
mailing list for Matador’s 1998 tax year, which neither was signed by a USPS
employee nor included a count of the number of pieces of mail which the USPS
received from the Commissioner. Before the CDP hearing, Mr. Goldberg made
Freedom of Information Act (FOIA) requests for the certified mailing list for the
Matador and Alpha NBAPs. Mr. Goldberg further alleges that the certified
mailing list for Alpha’s 2000 tax year was never produced and that the settlement
5 The term “computational adjustment” means “the change in the tax liability of a partner which properly reflects the treatment under this subchapter of a partnership item.” Sec. 6231(a)(6). - 10 -
[*10] officer did not properly consider all the FOIA requests because some were
still in process during the CDP hearing. Ultimately, none of Mr. Goldberg’s
allegations regarding the certified mailing lists affects the outcome of this case.
The Commissioner filed a motion for summary judgment under Rule 121.
Along with his motion, the Commissioner filed account transcripts, a declaration of
the IRS supervisory tax examining technician who maintains certified mail listing
records, and a declaration of the settlement officer. Mr. Goldberg filed a response,
and the Commissioner filed a reply. Mr. Goldberg also filed his own motion for
summary judgment, to which the Commissioner has filed a response.
Discussion
I. Summary Judgment Summary judgment serves to “expedite litigation and avoid unnecessary and
expensive trials.” Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). It
is not, however, a substitute for trial and should not be used to resolve genuine
disputes over issues of material fact. E.g., Vallone v. Commissioner, 88 T.C. 794,
801-805 (1987). 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). The moving party has the burden of showing - 11 -
[*11] the absence of a genuine dispute of material fact. FPL Grp., Inc. v.
Commissioner, 115 T.C. 554, 559 (2000); Bond v. Commissioner, 100 T.C. 32, 36
(1993); Naftel v. Commissioner, 85 T.C. 527, 529 (1985). For these purposes, the
Court affords the party opposing the motion the benefit of all reasonable doubt,
and the Court views the material submitted by both sides in the light most
favorable to the opposing party. That is, the Court resolves all doubts as to the
existence of an issue of material fact against the movant. Sundstrand Corp. v.
Commissioner, 98 T.C. at 520; see, e.g., Adickes v. S.H. Kress & Co., 398 U.S.
144, 157 (1970). However, where the moving party properly makes and supports a
motion for summary judgment, the opposing party “may not rest upon the mere
allegations or denials of such party’s pleading” but must set forth specific facts
showing that there is a genuine dispute for trial. Rule 121(d); see also Naftel v.
Commissioner, 85 T.C. at 529.
II. Analysis Mr. Goldberg’s motion for summary judgment seeks to void the
Commissioner’s deficiency determination (a) by collaterally attacking the
underlying TEFRA proceedings as untimely, see sec. 6501(a) (imposing a three-
year limitations period for assessing taxes), and (b) for failure to give adequate
notice by untimely issuing the NBAPs. The gravamen of Mr. Goldberg’s period of - 12 -
[*12] limitations argument is that the TMPs’ consents to extensions of the period
of limitations in the TEFRA actions were invalid 6 and that the Commissioner’s
failure to timely deliver NBAPs precluded Mr. Goldberg from obtaining remedies.
The Court finds it unnecessary to address the merits of Mr. Goldberg’s period of
limitations argument because this Court will hold that Mr. Goldberg cannot now
raise a challenge to the period of limitations; for that reason, this Court will also
deny his motion.
Specifically, Mr. Goldberg cannot now demand a de novo review of his
underlying liabilities for timely assessed partnership liabilities for multiple reasons.
First, he failed to raise his underlying liabilities by timely challenging the earlier
NFTL filing. Second, the FPAAs were validly issued, and Mr. Goldberg had
actual notice of the TEFRA litigation but neither participated in nor made section
6223(e) elections to convert the proceedings to partner-level challenges (nor did he
seek, pursuant to Rule 250, to remove the TMPs to whom he now objects).
The Commissioner’s motion for summary judgment argues that a challenge
to the period of limitations in a TEFRA proceeding is a challenge to the underlying
6 Under Rule 250, this Court may remove a TMP for cause and appoint another partner as TMP if the partnership fails to designate a successor, but Mr. Goldberg did not seek to have the TMPs removed during the TEFRA proceedings. - 13 -
[*13] liability which Mr. Goldberg should have raised during the partnership item
adjustment TEFRA proceedings rather than in a partner assessment of adjustment
items CDP proceeding. The Commissioner’s motion then argues that without the
underlying liability being at issue, this Court should review for abuse of discretion
and affirm the decision of Appeals to sustain the levy notice. This Court will grant
the Commissioner’s motion because the Court agrees that Mr. Goldberg’s period
of limitations argument had to be raised during the TEFRA proceedings and
because this Court will find no abuse of discretion by Appeals in sustaining the
levy notice.
A. Mr. Goldberg’s Motion for Summary Judgment
1. Standard of Review Section 6330(d)(1) grants this Court jurisdiction to review a determination
made by Appeals in a levy case. Where the underlying tax liability is properly at
issue, the Court reviews the determination of liability de novo. E.g., Goza v.
Commissioner, 114 T.C. 176, 181-182 (2000). De novo review means that the
Court reviews “without deferring to any prior administrative adjudication” and
“entirely independent of the administrative proceedings.” Morris v. Rumsfeld, 420
F.3d 287, 292, 294 (3d Cir. 2005) (citing Timmons v. White, 314 F.3d 1229 (10th
Cir. 2003)). - 14 - [*14] 2. A Challenge to the Period of Limitations in a TEFRA Proceeding Is a Challenge to the Underlying Liability That Requires De Novo Review
Mr. Goldberg’s motion for summary judgment seeks to void the
Commissioner’s FPAA deficiency determination by asserting that the underlying
TEFRA proceedings were untimely. See sec. 6501(a) (imposing a three-year
limitations period for assessing tax). Mr. Goldberg’s period of limitations
argument is that the TMPs’ consents to extend the periods of limitations in the
TEFRA proceedings were invalid. The Court finds it unnecessary to address the
merits of Mr. Goldberg’s period of limitations argument because a challenge to the
period of limitations is a challenge to the underlying liability which must be raised
at the partnership level and Mr. Goldberg cannot now raise such a challenge. See
infra pp. 14-16.
TEFRA requires that all partnership items be determined in a single
partnership-level proceeding unless a partner makes a timely election to opt out of
the TEFRA proceeding by having his items converted to nonpartnership items.
Secs. 6221, 6223(e)(3); see also Randell v. United States, 64 F.3d 101, 103 (2d Cir.
1995). In the absence of a timely election, the determination of partnership items
in a TEFRA proceeding is binding on the partners and may not be challenged in a
later partner-level proceeding. See secs. 6230(c)(4), 7422(h). - 15 -
[*15] The issue before this Court then is whether a challenge to the period of
limitations is a challenge to the underlying liability which must be raised at the
partnership level (i.e., in a TEFRA proceeding). The U.S. Court of Appeals for the
Seventh Circuit, the court to which an appeal of this case would presumably lie
absent a stipulation to the contrary, see sec. 7482(b)(2); Golsen v. Commissioner,
54 T.C. 742, 757 (1970), aff’d, 445 F.2d 985 (10th Cir. 1971), has already
considered this issue in Kaplan v. United States, 133 F.3d 469 (7th Cir. 1998).
In Kaplan, 133 F.3d 469, small-share partners 7 in a partnership brought a
refund claim in which they challenged the period of limitations in an underlying
TEFRA proceeding by arguing that the TMP’s consents to extensions of time were
invalid because the TMP did not properly provide them notice. The Court of
Appeals observed that “[t]his is precisely the type of challenge prohibited by
TEFRA in light of Congress’s decision that such suits are better addressed in one
fell swoop at the ‘partnership level’ than in countless suits by individual partners.
Other courts share our view that this kind of statute of limitation challenge
concerns a partnership item.” Id. at 473; see Bedrosian v. Commissioner, 940 F.3d
7 TEFRA required the IRS to send notice to each partner owning at least a 1% share of the partnership; it left the burden of providing notice to partners owning less than a 1% share (i.e., small-share partners) on the TMP. See sec. 6223(a), (b), (g). - 16 -
[*16] 467, 471-472 (9th Cir. 2019), aff’g 143 T.C. 83 (2014); Keener v. United
States, 551 F.3d 1358, 1362-1363 & n.3 (Fed. Cir. 2009); Weiner v. United States,
389 F.3d 152, 156 (5th Cir. 2004); Davenport Recycling Assocs. v. Commissioner,
220 F.3d 1255, 1260 (11th Cir. 2000), aff’g T.C. Memo. 1998-347; Chimblo v.
Commissioner, 177 F.3d 119, 125 (2d Cir. 1999), aff’g T.C. Memo. 1997-535;
Williams v. United States, 165 F.3d 30 (6th Cir. 1998) (unpublished table
decision).
This Court agrees with the Court of Appeals and concludes that Mr.
Goldberg was required to raise his period of limitations challenge at the
partnership level; because he did not, he is barred from raising such a challenge in
this proceeding.
3. The FPAAs Were Validly Issued and Mr. Goldberg Had Actual Notice of the TEFRA Litigation Section 6223(a) provides that the “Secretary must give partners notice of
beginning and completion of administrative proceedings [(NBAP)]. The Secretary
shall mail to each partner whose name and address is furnished to the Secretary
notice of * * * the beginning of an administrative proceeding at the partnership
level with respect to a partnership item”. See Taurus FX Partners, LLC v.
Commissioner, T.C. Memo. 2013-168, at *17. The Commissioner is required to
issue an NBAP at least 120 days before he issues an FPAA. Sec. 6223(d)(1). - 17 -
[*17] Mr. Goldberg alleges that he did not receive an NBAP for either Matador’s
1998 tax year or Alpha’s 2000 tax year. He argues that he was therefore unable to
participate in the partnership-level proceedings, in turn converting his partnership
items to nonpartnership items, and that the period of limitations has expired with
respect to the nonpartnership items. In support of his argument that he never
received any NBAPs, Mr. Goldberg argues that the Commissioner failed to comply
with procedures related to the certified mailing list. The gist of Mr. Goldberg’s
claim is that while the USPS stamped the certified mailing list, it neither was
signed by a USPS employee nor included the total piece count (which should
match the number of NBAPs the Commissioner recorded sending to USPS).
There are two problems with Mr. Goldberg’s certified mailing list argument.
First, even if he did not receive the NBAPs, the FPAAs were still valid and the
operative notices which Mr. Goldberg should have challenged at the partnership
level. Second, Mr. Goldberg had actual notice of the TEFRA litigation.
The Commissioner’s failure to timely issue an NBAP does not automatically
convert partnership items to nonpartnership items nor invalidate an otherwise valid
FPAA. See Bedrosian v. Commissioner, 143 T.C. at 95; Pac. Mgmt. Grp. v.
Commissioner, T.C. Memo. 2018-131, at *35; Taurus FX Partners, LLC v.
Commissioner, at *17. Such a failure by the Commissioner instead gives rise to - 18 -
[*18] certain statutory rights under section 6223(e). Bedrosian v. Commissioner,
143 T.C. at 95-96 (“[T]he [IRS’] failure [to issue certain notices within certain
time constraints] gives rise to statutory rights under section 6223(e).”). That
section allows taxpayers to whom the IRS untimely mails notice of a proceeding,
or fails to mail such notice, to opt to have their partnership items treated as
nonpartnership items, so long as the TEFRA proceeding is still ongoing. In this
case the TEFRA proceedings were still ongoing at the time the FPAAs were
issued.8 Mr. Goldberg’s remedy was to make an election under section 6223(e)(3),
but he made no such election. 9
8 Mr. Goldberg has not disputed receipt of the FPAAs. 9 The Court presumes that the FPAA was, in this case, the operative notice which gave rise to Mr. Goldberg’s election rights under sec. 6223(e). In Bedrosian v. Commissioner, 143 T.C. 83 (2014), aff’d, 940 F.3d 467 (9th Cir. 2019), this Court addressed the question of when election rights arise under sec. 6223(e). The temporary regulation at the time, sec. 301.6223(e)-2T, Temporary Income Tax Regs., 52 Fed. Reg. 6785 (Mar. 5, 1987), required that the election be made within 45 days after the date on which the notice is mailed. In Bedrosian v. Commissioner, 143 T.C. at 99, the Court stated that, “[a]lthough it is unclear whether the ‘notice’ refers to the NBAP or the FPAA, because the FPAA is the later notice in this case, we will presume the FPAA is the operative notice.” This Court also added in a footnote: “The current regulation clarifies that the FPAA is the operative notice, but that regulation became effective on October 4, 2001, for partnership years beginning after that date. See sec. 301.6223(e)-2(e), Proced. & Admin. Regs. A temporary regulation was effective for the partnership years at issue, and the IRS took the same position even before the final regulations. Field Service Advisory 1993, 1993 WL 1469668.” Id. at 99 n.11. - 19 -
[*19] Mr. Goldberg also had actual notice of the ongoing TEFRA proceedings
regardless of whether he received NBAPs. First, the TEFRA proceedings were
ongoing when he received the FPAAs. Second, the TEFRA proceedings were still
ongoing when Mr. Goldberg sent his 2010 protest letter to the Commissioner.
Nevertheless, he made neither elections under section 6223(e)(3) nor any filings in
the TEFRA proceedings which sought to challenge the period of limitations. There
is simply no way now for Mr. Goldberg to escape his repeated failures to pursue
timely remedies to his partnership liability claims.10
B. Commissioner’s Motion for Summary Judgment 1. Standard of Review Having decided that the underlying tax liabilities are not properly at issue in
this case, this Court will review for abuse of discretion Appeals’ determination to
sustain the levy action. E.g., Goza v. Commissioner, 114 T.C. at 182. In
10 In Davison v. Commissioner, T.C. Memo. 2019-26, aff’d, 805 F. App’x 259 (5th Cir. 2020), this Court addressed whether a taxpayer may contest his underlying income tax liability in a CDP case to the extent that this liability was based on computational adjustments resulting from a TEFRA proceeding. See also Hudspath v. Commissioner, T.C. Memo. 2005-83, aff’d, 177 F. App’x 326 (4th Cir. 2006). This Court held that, pursuant to sec. 6330(c)(2)(B), a taxpayer is precluded from challenging the existence or amount of an underlying income tax liability where the taxpayer had the opportunity in a TEFRA proceeding to challenge the partnership items that were reflected on the FPAA. Davison v. Commissioner, at *13-*14. - 20 -
[*20] reviewing for abuse of discretion, the Court must uphold the settlement
officer’s determination unless it 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); see also Keller v. Commissioner, 568 F.3d 710, 716-718
(9th Cir. 2009), aff’g in part T.C. Memo. 2006-166, and aff’g in part, vacating in
part decisions in related cases. The Court does not conduct an independent review
or substitute our own judgment for that of the settlement officer. Murphy v.
Commissioner, 125 T.C. at 320.
2. Appeals Did Not Abuse Its Discretion in Sustaining the Levy Action Sections 6320 and 6330 provide taxpayers the opportunity for notice and a
hearing upon the filing of an NFTL (section 6320) and before a levy to collect
unpaid tax (section 6330). If a taxpayer requests a CDP hearing, the settlement
officer conducting the hearing must verify that the requirements of any applicable
law or administrative procedure have been met. Secs. 6320(c), 6330(c)(1). The
taxpayer may raise at a hearing any relevant issue relating to the unpaid tax or the
collection action, including challenges to the appropriateness of collection actions
and offers of collection alternatives. See sec. 6330(c)(2)(A). The taxpayer may
also raise at the hearing challenges to the existence or amount of the underlying tax
liability for any period if the person did not receive a statutory notice for such - 21 -
[*21] liability or did not otherwise have an opportunity to dispute such liability.
See sec. 6330(c)(2)(B). A taxpayer who may raise the underlying liability during a
CDP hearing must properly raise the merits of the underlying liability as an issue
during the hearing to preserve the issue for judicial review. See Giamelli v.
Commissioner, 129 T.C. 107, 112-116 (2007); secs. 301.6320-1(f)(2), Q&A-F3,
301.6330-1(f)(2), Q&A-F3, Proced. & Admin. Regs. The merits are not properly
raised if the taxpayer challenges the underlying tax liability but fails to present
Appeals with any evidence with respect to that liability after having been given
reasonably opportunity to present such evidence. See LG Kendrick, LLC v.
Commissioner, 146 T.C. 17, 34 (2016), aff’d, 684 F. App’x 744 (10th Cir. 2017);
secs. 301.6320-1(f)(2), Q&A-F3, 301.6330-1(f)(2), Q&A-F3, Proced. & Admin.
Regs.
The Commissioner issued Mr. Goldberg an NFTL filing on April 7, 2015,
for Mr. Goldberg’s 1998 and 2000 income tax liabilities. A taxpayer has 30 days
to challenge an NFTL filing by requesting a section 6320 hearing or submitting a
Form 12153, but Mr. Goldberg failed to make a timely challenge. See sec.
6320(b).
The Commissioner then issued Mr. Goldberg a levy notice, dated December
2, 2015, for Mr. Goldberg’s 1998 and 2000 income tax liabilities. A taxpayer has - 22 -
[*22] 30 days to challenge a levy notice by requesting a section 6330 hearing or
submitting a Form 12153. Sec. 6330. This time, Mr. Goldberg did timely file a
Form 12153 on December 20, 2015, requesting, among other things, a CDP
hearing.
As the Court stated supra, section 6330(c)(2)(B) provides that the existence
and amount of the underlying tax liability can only be contested at a CDP hearing
if the taxpayer did not receive a notice of deficiency for the tax in question or did
not otherwise have an earlier opportunity to dispute such tax liability. See Goza v.
Commissioner, 114 T.C. at 180-181; see also Our Country Home Enters., Inc. v.
Commissioner, 855 F.3d 773, 787 (7th Cir. 2017). The NFTL filing was a prior
opportunity of which Mr. Goldberg did not avail himself. See Inv. Research
Assocs., Inc. v. Commissioner, 126 T.C. 183, 189-191 (2006) (holding that the
right to a hearing applies only to the first NFTL filing regarding each tax liability);
see also Gray v. Commissioner, 723 F.3d 790, 793 (7th Cir. 2013). Therefore, the
underlying liabilities are not properly at issue and the Court will review for abuse
of discretion. 11
The Commissioner’s motion for summary judgment further argues that 11
Mr. Goldberg was required to raise his period of limitations argument as a challenge to the underlying liabilities in the TEFRA proceedings. The Court does not address that argument here because the Court has already addressed Mr. - 23 -
[*23] In reviewing whether Appeals properly sustained the levy notice to facilitate
collection of Mr. Goldberg’s unpaid 1998 and 2000 income tax liabilities, the
Court reviews the record to determine whether the settlement officer: (1) properly
verified that the requirements of applicable law or administrative procedure have
been met; (2) considered any relevant issues petitioner raised; and (3) considered
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.” See sec. 6330(c)(3).
Our review of the record establishes that the settlement officer properly
verified assessments of Mr. Goldberg’s share of the partnership level adjustments
for each tax period, verified that all legal and procedural requirements had been
met, see CreditGuard of Am., Inc. v. Commissioner, 149 T.C. 370, 379 (2017), and
determined that the proposed levy appropriately balances the need for the efficient
collection of taxes with petitioner’s legitimate concern that the action be no more
intrusive than necessary. Mr. Goldberg failed to propose any collection alternative
before or during his CDP hearing. It is not an abuse of discretion for a settlement
officer to sustain a collection action and not consider collection alternatives when
Goldberg’s arguments supra. Presumably, had Mr. Goldberg timely challenged the NFTL filing, the same analysis would apply. - 24 -
[*24] the taxpayer has proposed none. See McLaine v. Commissioner, 138 T.C.
228, 242-243 (2012); Kendricks v. Commissioner, 124 T.C. 69, 79 (2005); see also
sec. 301.7122-1(d)(1), Proced. & Admin. Regs. (requiring that offers to
compromise a tax liability must be made in writing and include all the information
prescribed or requested by the IRS).
Because Mr. Goldberg cannot now challenge the underlying liabilities, and
because the Court finds no abuse of discretion, the Court will sustain the collection
action and grant the Commissioner’s motion for summary judgment.
III. Conclusion 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. No genuine dispute of material fact exists regarding
the Commissioner’s determination in this collection action. See Naftel v.
Commissioner, 85 T.C. at 529. Accordingly, the Court will grant the
Commissioner’s motion for summary judgment and will deny petitioner’s motion
for summary judgment.
To reflect the foregoing,
An appropriate order will be issued.