T.C. Memo. 2019-52
UNITED STATES TAX COURT
RUDY ROSENBERG, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 13226-13L. Filed May 15, 2019.
Rudy Rosenberg, pro se.
Lydia A. Branche and Marco Franco, for respondent.
MEMORANDUM OPINION
COLVIN, Judge: In this collection due process (CDP) case, petitioner has
invoked our jurisdiction, pursuant to section 6330(d)(1),1 over respondent’s
1 Section references are to the Internal Revenue Code, as amended and in effect at all relevant times. Rule references are to the Tax Court Rules of Practice and Procedure. Petitioner resided in New Jersey when he filed the petition in this (continued...) -2-
[*2] determination to uphold a notice of intent to levy. The case is before the
Court on respondent’s second motion for summary judgment, petitioner’s second
motion for summary judgment, and several other motions filed by petitioner.
In his petition, petitioner disputed respondent’s determination that he had
any underlying tax liability for 2003. In the second motion for summary judgment
respondent contends that petitioner may not dispute respondent’s determination
because, during remand of this case, respondent provided an opportunity for
petitioner to dispute the existence and amount of his tax liability but petitioner
failed to do so. Thus, the issue for decision with respect to respondent’s second
motion for summary judgment is whether facts alleged by respondent showing that
petitioner did not contest the existence or amount of his underlying tax liability
during remand of this case are genuinely in dispute. As discussed below, we hold
that none of the allegations and contentions in petitioner’s second motion for
summary judgment put in genuine dispute any of the facts material to respondent’s
motion or otherwise justify granting petitioner’s second motion for summary
1 (...continued) case. The petition in this case predates the effective date of the amendment to sec. 7482(b) clarifying appellate venue in CDP cases. See Protecting Americans from Tax Hikes Act, Pub. L. No. 114-113, sec. 423(a), 129 Stat. at 3123 (Dec. 18, 2015). -3-
[*3] judgment. Thus, we will deny petitioner’s second motion for summary
judgment and grant respondent’s second motion for summary judgment.
Background
A. Notice of Deficiency for 2003
A copy of the envelope that contained the notice of deficiency for 2003 is in
the record. The envelope has a certified mail label with an article No. 7105 5678
7185 4047 5266. The post office notified petitioner three times in February 2008
of its attempts to deliver the notice of deficiency to petitioner’s post office box, as
shown by the appearance on the lower right portion of the envelope of three
handwritten dates: “2/14/08”, “2-19”, and “2-29”. The envelope is stamped
“RECEIVED MAR 10 2008 MEMPHIS, TENN IRS-MIRSC” and
“UNCLAIMED” and has a postal barcode at the bottom. Part of the notice of
deficiency, dated February 11, 2008, and addressed to petitioner’s post office box
in New Jersey, is visible through a window on the front of the envelope. The
certified mail number on the certified mail label matches the article number on the
notice of deficiency. Petitioner did not accept the envelope or give any reason
(such as illness or travel) for not accepting it. -4-
[*4] B. 2012 Collection Due Process Hearing
On August 15, 2012, respondent sent petitioner a final notice of intent to
levy with respect to what respondent determined was the amount of petitioner’s
unpaid income tax for 2003.
Petitioner timely requested a CDP hearing. On October 26, 2012,
Settlement Officer (SO) Bankston sent petitioner a letter in which she stated that
she had scheduled a telephone CDP hearing for November 27, 2012. SO
Bankston also stated that, before she could consider a collection alternative,
petitioner must file all required Federal income tax returns and provide a
completed Form 433-A, Collection Information Statement for Wage Earners and
Self-Employed Individuals. That telephone hearing did not take place because of
disruptions caused by Hurricane Sandy. In a letter to petitioner dated March 29,
2013, SO Bankston said that she had rescheduled the telephone CDP hearing for
April 30, 2013, and asked petitioner to call her at the stated time. Petitioner did
not do so.
On May 10, 2013, respondent sent petitioner a notice of determination
concerning collection action (notice of determination). The notice of
determination said that petitioner had received a notice of deficiency for tax year
2003 and that he was, therefore, not permitted to challenge respondent’s -5-
[*5] determination of the existence or amount of his underlying tax liability for
2003. The notice of determination also stated that petitioner had not filed a timely
Federal income tax return for 2003, that the Internal Revenue Service (IRS) had
prepared a substitute for return pursuant to section 6020(b), and that “[a] review of
the administrative file indicates that statutory and administrative requirements that
needed to be met with respect to the proposed levy have been satisfied.”
C. Petition in and Remand of This Case
Petitioner timely petitioned this Court on June 11, 2013. In the petition, he
disputed only respondent’s determination that he had any underlying tax liability
for 2003.
Respondent filed the first motion for summary judgment on March 12,
2014. We denied that motion without prejudice on May 8, 2014, and remanded
the case to the IRS Appeals Office to allow it to consider whether petitioner had
had a prior opportunity to dispute respondent’s determination of his tax liability
for 2003 and to permit it to further consider petitioner’s collection case.
D. Events During Remand
On remand AO Pleasants spoke with petitioner on June 25, 2014, and
offered petitioner an opportunity to resolve the existence and amount of his -6-
[*6] underlying tax liability for 2003.2 AO Pleasants described this conversation
in a letter dated June 26, 2014, in which AO Pleasants said petitioner had 15 days
to provide additional information to support his position, including a signed copy
of his 2003 Federal income tax return. According to AO Pleasants’ case activity
record: (1) petitioner did not provide this information; (2) when AO Pleasants
telephoned petitioner on July 23, 2014, petitioner said he had not received the
June 26, 2014, letter; and (3) after confirming petitioner’s address, AO Pleasants
reiterated the content of the letter. AO Pleasants’ case activity record states that
petitioner told him that he would not submit documentation during remand unless
he received a Court order instructing him to do so. After speaking with petitioner,
AO Pleasants returned the case file to SO Bankston.
According to SO Bankston’s case activity record, she telephoned petitioner
on July 28, 2014, to discuss (1) AO Pleasants’ decision to sustain the proposed
levy action and return the case to the SO, (2) whether petitioner had received the
notice of deficiency, and (3) whether the notice of deficiency and AO Pleasants’
June 26, 2014, letter had been sent to petitioner’s last known address. Also
2 AO Pleasants’ letter to petitioner dated June 26, 2014, refers to the June 25 phone call. Respondent’s case activity records document a phone call from SO Bankston to petitioner on June 25, 2014, to advise him that the case was being transferred to AO Pleasants. -7-
[*7] according to her case activity record, SO Bankston told petitioner that,
although AO Pleasants had given him another opportunity to discuss the existence
and amount of his underlying tax liability, he had failed to take advantage of that
opportunity.
E. Supplemental Notice of Determination
After remand the Appeals Office issued a supplemental notice of
determination concerning collection action (supplemental notice of
determination), dated August 19, 2014. In the supplemental notice of
determination, the Appeals Office determined, inter alia, that: (1) petitioner had
failed to cooperate with Appeals Officer (AO) Pleasants during the supplemental
CDP hearing and failed to submit the requested 2003 Federal income tax return or
any information that would support not imposing the levy, (2) the notice of
deficiency was mailed via certified mail to petitioner’s address of record (the New
Jersey address), (3) the post office made three attempts to notify petitioner of the
certified mail delivery, and (4) it was returned marked “UNCLAIMED”. The
Appeals Office asserted that it is presumed that the notice of deficiency was
mailed to the correct address. It determined that petitioner intentionally refused to
claim the notice of deficiency and therefore is deemed to have received that notice
and is precluded from challenging respondent’s determination of the existence and -8-
[*8] amount of his underlying tax liability for 2003. The Appeals Office also
concluded that it had properly verified that the requirements of all applicable law
and administrative procedure were followed in the processing of petitioner’s case
and that the collection action balanced the Government’s need for the efficient
collection of taxes with petitioner’s concern that the collection action be no more
intrusive than necessary. In the supplemental notice of determination the Appeals
Office sustained the notice of intent to levy.
Discussion
A. Summary Judgment
Summary judgment is designed to expedite litigation and avoid unnecessary
and expensive trials. Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988).
Summary judgment may be granted with respect to all or part of the legal issues
presented “if the pleadings, answers to interrogatories, depositions, admissions,
and any other acceptable materials, together with the affidavits or declarations, if
any, show that there is no genuine dispute as to any material fact and that a
decision may be rendered as a matter of law.” Rule 121(a) and (b); see Sundstrand
Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th Cir.
1994). -9-
[*9] In deciding whether to grant summary judgment the Court must consider the
factual materials and inferences drawn from them in the light most favorable to the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Bond v. Commissioner, 100 T.C. 32, 36 (1993); Dahlstrom v. Commissioner, 85
T.C. 812, 821 (1985); Naftel v. Commissioner, 85 T.C. 527, 529 (1985).
Rule 121(d) provides:
When a motion for summary judgment is made and supported as provided in this Rule, an adverse party [here, petitioner] may not rest upon the mere allegations or denials of such party’s pleading, but such party’s response, by affidavits or declarations or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine dispute for trial. * * *
The nonmoving party must rebut the motion with facts in the record and
cannot rest solely on assertions made in the pleadings, legal memoranda, or oral
argument. Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006).3
A single nonconclusory affidavit, based on personal knowledge and directed at a
material issue, is sufficient to defeat summary judgment. Lupyan v. Corinthian
Colleges Inc., 761 F.3d 314, 320-321 (3d Cir. 2014). The nonmoving party is
required “to go beyond the pleadings and by * * * [his] own affidavits, or by the
3 The non-Tax Court cases cited in this paragraph were decided under Fed. R. Civ. P. 56, on which our Rule 121 is in large part modeled. Shiosaki v. Commissioner, 61 T.C. 861, 862 (1974). - 10 -
[*10] ‘depositions, answers to interrogatories, and admissions on file,’ designate
‘specific facts showing that there is a genuine issue for trial.’” Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). Thus, if the nonmoving party does not allege
and provide evidence showing that there is a genuine dispute for trial, then
decision may be entered against the nonmoving party. Rule 121(d); FPL Grp., Inc.
& Subs. v. Commissioner, 115 T.C. 554, 559-560 (2000); Rivas v. Commissioner,
T.C. Memo. 2017-56; Schropp v. Commissioner, T.C. Memo. 2010-71, aff’d, 405
F. App’x 800 (4th Cir. 2010).
B. Whether Facts Alleged by Respondent To Show That Petitioner Refused To Cooperate During the Remand of This Case Are Genuinely in Dispute
Respondent contends that petitioner may not contest the existence or
amount of his underlying tax liability because, during remand, respondent
provided an opportunity for petitioner to dispute his tax liability and petitioner did
not take advantage of that opportunity. Respondent is entitled to summary
judgment if those facts are not genuinely in dispute.
The affidavits or declarations and attachments (comprising copies of
documents from the administrative record) accompanying respondent’s second
motion for summary judgment show the following. AO Pleasants spoke with
petitioner on June 25, 2014, and offered him an opportunity to resolve the dispute - 11 -
[*11] over his underlying tax liability for 2003. A copy of the letter
memorializing that conversation and requesting that petitioner supply his 2003
Federal income tax return is in the record. AO Pleasants’ call to petitioner on July
23, 2014, was followed by a call to petitioner from SO Bankston on July 28, 2014.
During the telephone call on July 23, 2014, petitioner said he would not submit
documentation to the IRS unless he received a Court order instructing him to do
so.4
Respondent’s factual assertions relating to respondent’s second motion for
summary judgment are supported by affidavits, declarations, copies of letters, and
case activity records described in the affidavits as being contemporaneously
maintained by AO Pleasants and SO Bankston. Thus, respondent’s motion was
“made and supported as provided in * * * [Rule 121]”. Thus, under Rule 121(d),
we next decide whether, by “affidavits or declarations or as otherwise provided in
this Rule”, petitioner has raised any genuine factual issues for trial.
4 Consistent with the taxpayer’s obligation to provide relevant information during the CDP. hearing process, a taxpayer in a CDP case may not properly condition participation in a CDP hearing, including the production of reasonably requested documents, on the receipt of a Court order instructing him or her to do so. Cf. Pough v. Commissioner, 135 T.C. 344 (2010); Barry v. Commissioner, T.C. Memo. 2010-57. - 12 -
[*12] Petitioner did not file an objection to respondent’s second motion for
summary judgment or include an affidavit with his second motion for summary
judgment. In his motion petitioner alleges that respondent’s personnel
manipulated the record, manufactured evidence, violated his administrative rights,
and engaged in prohibited ex parte communications between the Appeals SO and
respondent’s counsel in this case. Petitioner has not provided credible support for
these claims. Petitioner does not contend that he offered any information relating
to his tax liability for 2003 during remand. Generally, a taxpayer must raise an
issue at a CDP hearing to preserve it for review by this Court. Perkins v.
Commissioner, 129 T.C. 58, 63 (2007); Magana v. Commissioner, 118 T.C. 488,
493-494 (2002); Gentile v. Commissioner, T.C. Memo. 2013-175, at *6, aff’d, 592
F. App’x 824 (11th Cir. 2014). The merits of an issue are not properly raised if
the taxpayer fails to present information about the existence or amount of his
underlying tax liability after being given a reasonable opportunity to do so.
Cropper v. Commissioner, 826 F.3d 1280, 1289 (10th Cir. 2016), aff’g T.C.
Memo. 2014-139; Portwine v. Commissioner, T.C. Memo. 2015-29, at *8, aff’d,
688 F. App’x 838 (10th Cir. 2016); Delgado v. Commissioner, T.C. Memo. 2011-
240; sec. 301.6330-1(f)(2), Q&A-F3, Proced. & Admin. Regs. During remand - 13 -
[*13] petitioner provided no support for the allegation in his petition that he owes
no tax for 2003.
In his second motion for summary judgment petitioner contends that the
Court’s remand of this case was improper because respondent should not have
been afforded an opportunity to supplement the record. We disagree. We may
remand a case to the Appeals Office for further hearing in appropriate
circumstances. See Lunsford v. Commissioner, 117 T.C. 183, 189 (2001). After
remand we properly review the CDP determination and record as supplemented.
Kelby v. Commissioner, 130 T.C. 79, 86 (2008). The Appeals Office on remand is
not limited to the original administrative record because the purpose of remand is
often to augment a deficient record. See Hoyle v. Commissioner, 136 T.C. 463
(2011), supplementing 131 T.C. 197 (2008); Lunnon v. Commissioner, T.C.
Memo. 2015-156, at *18, aff’d, 652 F. App’x 623 (10th Cir. 2016).
The SO who conducted the original CDP hearing also conducted the
supplemental CDP hearing. Petitioner contends that a different SO should have
been assigned to petitioner’s supplemental CDP hearing. We disagree. A CDP
hearing may be provided by an Appeals officer or employee within the Appeals
Office who has had no prior involvement with respect to the unpaid tax before the
first hearing under section 6330 or section 6320. Sec. 6330(b)(1), (3); see Offiler - 14 -
[*14] v. Commissioner, 114 T.C. 492, 496 (2000). Prior involvement exists only
when (1) the taxpayer, the tax, and the tax period at issue in the CDP hearing also
were at issue in a prior non-CDP matter and (2) the Appeals officer or employee
actually participated in the prior matter. Crescent Manor, Inc. v. Commissioner,
T.C. Memo. 2017-94, at *17; sec. 301.6330-1(d)(2), Q&A-D4, Proced. & Admin.
Regs. Any personnel eligible to work on petitioner’s CDP hearing are also
eligible to work on his supplemental CDP hearing. See Med. Practice Sols., LLC
v. Commissioner, T.C. Memo. 2010-98, supplementing T.C. Memo. 2009-214.
Petitioner contends that he is not subject to income tax because he was
residing in the United States during the relevant period on a temporary visa, but he
provided no support for this contention.
Petitioner contends that he received insufficient notice of the April 30,
2013, telephone CDP hearing because, according to petitioner, SO Bankston’s
March 29, 2013, letter was not mailed until April 24, 2013. Regardless of the date
of mailing of that letter, it would not change our conclusion that respondent
provided to petitioner an opportunity on remand to challenge the existence or
amount of his underlying tax liability.
Petitioner disputes respondent’s allegation that petitioner was uncooperative
during the supplemental CDP hearing. However, petitioner has provided no - 15 -
[*15] credible affidavits or other support for his claim. Petitioner does not claim
that he provided any of the documents requested by SO Bankston and AO
Pleasants. Thus, petitioner has not raised a genuine factual dispute on this point.
Petitioner denies that he had a CDP hearing before or after remand of this
case. Respondent’s records show otherwise. A CDP hearing may be conducted
face-to-face, by telephone, or by the exchange of correspondence. Katz v.
Commissioner, 115 T.C. 329 (2000); see also sec. 301.6330-1(d)(2), Q&A-D6 and
D7, Proced. & Admin. Regs. A series of telephone conversations between a
taxpayer and an AO may constitute a CDP hearing. Dinino v. Commissioner, T.C.
Memo. 2009-284. AO Pleasants spoke with petitioner and sent him a letter
requesting that he supply his 2003 tax return.
In his second motion for summary judgment petitioner contends that,
contrary to respondent’s records, he received no phone calls from AO Pleasants on
June 25 or July 23 and that he did not receive the June 26 letter. In Berckeley Inv.
Grp., Ltd., 455 F.3d at 201, the U.S. Court of Appeals said:
In deciding the motion for summary judgment, our job is to ascertain solely whether there is a dispute of material fact * * * Although the non-moving party receives the benefit of all factual inferences in the court’s consideration of a motion for summary judgment, the non-moving party must point to some evidence in the record that creates a genuine issue of material fact. In this respect, summary judgment is essentially “put up or shut up” time for the non- - 16 -
[*16] moving party: the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument. * * * [Citations omitted.]
A single nonconclusory affidavit, based on personal knowledge and directed at a
material issue, is sufficient to defeat summary judgment even if the affidavit is
“self-serving”, because the testimony of a litigant could almost always be said to
be “self-serving”. Lupyan, 761 F.3d at 320-321, 321 n.5. Summary judgment is
properly granted where, for example, the opposing party submitted extensive
sworn testimony as evidence of its claim, United States v. $17,900.00 in U.S.
Currency, 859 F.3d 1085, 1092-1093 (D.C. Cir. 2017), or a supporting affidavit,
Arrington v. United States, 473 F.3d 329, 337-338 (D.C. Cir. 2006), but denied
where the opposing party provided no affidavit and made “mere allegations”
because the party’s obligation was to adduce evidence, Bush v. District of
Columbia, 595 F.3d 384, 386 (D.C. Cir. 2010).
These cases support granting respondent’s second motion for summary
judgment because petitioner submitted no affidavit with his own second motion
for summary judgment. Instead in his motion petitioner raised numerous
unsubstantiated arguments relating primarily to respondent’s conduct in this case.
Implausible assertions made by the nonmoving party need not be believed if - 17 -
[*17] documents or objective evidence contradicts the nonmoving party’s story.
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985).
Petitioner’s denials in his second motion for summary judgment that he
received mail, including certified mail, and phone calls, without any allegation that
the address or phone number respondent used was not correct, or that he was
traveling, ill, or otherwise unable to receive mail or phone calls, do not constitute a
genuine issue of fact with respect to respondent’s second motion for summary
judgment. We will grant respondent’s second motion for summary judgment.
Petitioner has not raised any persuasive grounds for granting, and thus we will
deny, his second motion for summary judgment.
C. Petitioner’s Motions
In addition, the following motions filed by petitioner are pending:
(1) motion to amend order; (2) motion to dismiss for lack of jurisdiction;
(3) motion to correct order; (4) motions to impose sanctions; (5) motions for leave
to conduct discovery pursuant to Rule 70(a)(2); (6) motions to clarify orders;
(7) motion to preclude; and (8) cross-show cause motion for summary judgment
and other relief. - 18 -
[*18] 1. Motion To Amend Order
In his motion to amend order petitioner claims that the Court’s May 8 and
August 8, 2014, orders are contradictory and asks that we clarify the reasons for
the August 8, 2014, order. We have reviewed those orders and we find no
contradiction or lack of clarity. Thus, we will deny petitioner’s motion.
2. Motion To Dismiss for Lack of Jurisdiction
In his motion to dismiss for lack of jurisdiction petitioner asserts that the
Court lacks jurisdiction because respondent has not proved that the notice of
determination was issued or that it was served on petitioner. We disagree.
Our jurisdiction in a CDP case under section 6330 requires the issuance of a
valid notice of determination and the filing of a timely petition for review. Rule
330(b); Orum v. Commissioner, 123 T.C. 1, 8 (2004), aff’d, 412 F.3d 819 (7th Cir.
2005); Sarrell v. Commissioner, 117 T.C. 122, 125 (2001); Moorhous v.
Commissioner, 116 T.C. 263, 269 (2001); Offiler v. Commissioner, 114 T.C. at
498.
To be timely, a petition invoking our jurisdiction must be filed within 30
days of the date of issuance of a notice of determination. Sec. 6330(d)(1). A
petition that is timely mailed is timely filed. Sec. 7502(a). The Appeals Office
issued a final notice of determination concerning collection action to petitioner on - 19 -
[*19] May 10, 2013. Thirty days thereafter was June 9, 2013, a Sunday. The last
day for filing an appeal of the notice of determination was Monday, June 10, 2013,
which was not a legal holiday. See sec. 7503. The petition was sent on June 10,
2013, by UPS 2nd Day Air A.M., which is a designated private delivery service,
see Notice 2004-83, 2004-2 C.B. 1030, and was received by the Court and filed
on June 11, 2013. The petition was timely filed because it was sent by UPS 2nd
Day Air A.M. on June 10. See id. Therefore, we will deny petitioner’s motion to
dismiss for lack of jurisdiction.5
3. Motion To Correct Order
In his motion to correct the Court’s May 8, 2014, order, petitioner alleges
that the following statement in that order is incorrect: “Petitioner contends that
respondent’s motion for summary judgment should be denied because, among
other things, the Appeals Officer incorrectly concluded that a notice of deficiency
for tax year 2003 was delivered to petitioner in Florida.” The sentence to which
petitioner objects states (incorrectly, in his view) an argument of petitioner’s.
Petitioner in essence seeks to have us state and endorse certain of his contentions.
5 Petitioner also filed a motion to dismiss for lack of jurisdiction as to tax year 2003. Our jurisdiction in this case is established in the text accompanying this note. In the motion petitioner also raises additional arguments that we have previously rejected. Thus we will deny petitioner’s motion to dismiss for lack of jurisdiction as to tax year 2003. - 20 -
[*20] Petitioner’s point referred to in the order has no bearing on whether there is
a genuine dispute of fact relating to either of respondent’s grounds for summary
judgment. Thus, we will deny petitioner’s motion as moot.
4. Motions To Impose Sanctions
In his motions to impose sanctions, petitioner alleges that: (1) SO
Bankston’s declaration accompanying respondent’s first motion for summary
judgment falsely stated that petitioner was served with the notice of deficiency for
2003 at a New Jersey address in 2008 and at a Florida address in 2011; (2) the
notice of determination dated May 10, 2013, falsely stated that petitioner had a
CDP hearing in April 2013; (3) the supplemental notice of determination dated
August 19, 2014, which was sent to petitioner as an attachment to respondent’s
status report dated September 4, 2014, falsely stated that petitioner had a CDP
hearing during the summer of 2014; (4) respondent failed to produce documents
requested by petitioner; (5) the Court is abusing its discretion and is engaging in
an extensive judicial overreach of authority; (6) the Court is engaging in ex parte
communications with respondent; (7) respondent did not respond to petitioner’s
discovery requests and has not allowed him to physically inspect respondent’s
records; and (8) respondent issued to petitioner a notice of deficiency with respect
to his 2012 tax year to retaliate against him for his position in the instant case and - 21 -
[*21] because he made a complaint to Michael Fiore, IRS deputy area counsel,
alleging abuse of process by two IRS attorneys in connection with this case.
Petitioner has not substantiated his allegations that respondent made false
statements and engaged in abuse of process or that respondent issued a notice of
deficiency for tax year 2012 to retaliate against him for making complaints and for
his position in this case. The declarations of SO Bankston in support of
respondent’s motions for summary judgment include the complete administrative
record of the case as of the dates of those declarations, including the record of the
case on remand to Appeals and the supplemental notice of determination.
Petitioner’s remaining allegations are frivolous and/or groundless. Therefore, we
will deny petitioner’s motions to impose sanctions.
5. Motions for Leave To Conduct Discovery and To Take Depositions
In his motions for leave to conduct discovery petitioner seeks (1) discovery
and leave to take depositions of respondent, fee waiver of any related costs to this
action, and a hearing with regard to respondent’s second motion for summary
judgment and (2) to exclude evidence from the supplemental CDP hearing.
Petitioner provides no credible evidence to support his allegations that
respondent committed fraud on the Court by making misrepresentations regarding - 22 -
[*22] whether a CDP hearing was conducted in April 2013 and whether a
supplemental CDP hearing was conducted in June and July 2014.
Under Rule 70(a)(2), leave of the Court is not required to conduct discovery
before a case is set for trial. Petitioner’s motion to take depositions of respondent
was flawed because petitioner did not name any individuals to be deposed or
provide the time and place of the deposition or the officer before whom the
deposition was to be taken. See Rule 74(a). In addition respondent provided
petitioner with the complete administrative record as attachments to respondent’s
motions for summary judgment.
The Appeals Office may supplement the administrative record during the
remand of a case. The purpose of remand is often to augment a deficient record.
See Hoyle v. Commissioner, 136 T.C. 463; Lunnon v. Commissioner, at *18.
When we remand a case and the Appeals Office issues a supplemental notice of
determination, we review the determination as supplemented. Kelby v.
Commissioner, 130 T.C. at 86. Petitioner’s remaining allegations are rebutted by
the declarations and activity logs in this case. Therefore, we will deny petitioner’s
motions for leave to conduct discovery. - 23 -
[*23] 6. Motions To Clarify Orders
In his first motion to clarify order petitioner seeks an order clarifying the
Court’s December 9, 2014, order. In that order the Court noted that respondent
had filed respondent’s second motion for summary judgment along with
supporting declarations and ordered petitioner to file a response by January 15,
2015. Petitioner made numerous allegations in his motion which are not
supported by the record and/or are frivolous or groundless. Therefore, we will
deny petitioner’s first motion to clarify order.
In his second motion to clarify order petitioner requests that the Court
clarify why it denied petitioner’s motion to certify for interlocutory appeal.
This Court may certify an interlocutory order for immediate appeal if: (1) a
controlling question of law is involved, (2) substantial grounds for a difference of
opinion are present as to that question of law, and (3) an immediate appeal may
materially advance the ultimate termination of the litigation. Sec. 7482(a)(2)(A);
Rule 193(a). Failure to meet any one of the three requirements is grounds for
denying certification. Gen. Signal Corp. v. Commissioner, 104 T.C. 248, 251
(1995), aff’d on other grounds, 142 F.3d 546 (2d Cir. 1998); N.Y. Football Giants,
Inc. v. Commissioner, T.C. Memo. 2003-28. We did not certify this case for - 24 -
[*24] interlocutory appeal because petitioner did not identify in his motion any
controlling question of law that meets this standard.
7. Motion To Preclude
In his motion to preclude petitioner contends that respondent violated
section 6103 by disclosing his confidential taxpayer information in respondent’s
second motion for summary judgment and in SO Bankston’s declaration and
attachments and using this case to put it into the public record. We disagree.
Section 6103(h)(4)(A) provides in pertinent part that returns and return
information may be disclosed in a Federal or State judicial or administrative
proceeding pertaining to tax administration where the taxpayer is a party to the
proceeding or the proceeding arose out of, or in connection with, the collection of
the taxpayer’s civil tax liability. Section 6103(h)(4)(A) applies to respondent’s
filings in this case.
Petitioner alleges that respondent has violated Rule 228 by filing
respondent’s first motion for summary judgment, which includes exhibits
pertaining to petitioner’s return information. Rule 228 applies to disclosure
actions filed in this Court under section 6110 and so does not apply in this case.
Petitioner claims that the disclosure of this information through the Court’s
electronic system via the internet improperly placed petitioner’s confidential - 25 -
[*25] records into the public domain. We disagree. While, for example, all of this
Court’s opinions and orders may be viewed by the public on this Court’s website,
generally speaking only parties and their counsel have remote electronic access to
underlying factual materials (e.g., exhibits attached to motions) filed by the
parties. See Rule 27(b). We will deny petitioner’s motion to preclude.
8. Petitioner’s Cross-Show Cause Motion for Summary Judgment and Other Relief
By order dated June 26, 2018, the Court ordered that for each pending
motion, the nonmoving party shall file a response no later than August 10, 2018,
and that not later than September 10, 2018, the moving party may file a response
to each response filed by the other party. Respondent complied with that order by
filing responses to petitioner’s pending motions and serving them upon petitioner
through the Court’s eAccess portal. The Court gave both parties an equal
opportunity to respond to the Court’s June 2018 order, but the Court did not
receive any properly filed pleadings from petitioner with regard to motions filed
by respondent. Instead, petitioner sent emails to the Court’s webmaster and other
Court email addresses from August through October 2018 in which he claimed to
be having difficulties with electronic filing using the Court’s eAccess portal. - 26 -
[*26] On October 2, 2018, we ordered petitioner to file paper copies of the
responses we requested in our June 26, 2018, order. We ordered the Clerk of the
Court to mail a copy of our October 2, 2018, order to petitioner at his address of
record and to attach a copy of the June 26, 2018, order. The record does not show
that there was any return mail on this order.
Pleadings and other papers may be filed with the Clerk of the Court in paper
form or filed electronically using the Court’s eAccess portal. The Court does not
accept or file emails sent to the Court. Rule 21(b) generally provides that service
of papers on another party shall be by mail or by delivery. This includes pleadings
and other papers mailed or hand delivered to the Court. Id. The Court also
accepts for filing papers submitted, signed, or verified by electronic means that
comply with procedures established by the Court, i.e., the Court’s eAccess portal.
Rule 26(a). We do not consider petitioner’s email submissions.
Petitioner sent to the Court correspondence dated November 6, 2018, which
was stamped received by the Court on November 14, 2018, and which is titled
“Cross-Show Cause Motion for Summary Judgment & Other Relief”. That
document was not accepted for filing because it contains multiple motions, and it
therefore does not comply with Rule 54(b). - 27 -
[*27] To reflect the foregoing,
An appropriate order and decision
will be entered.