T.C. Summary Opinion 2020-3
UNITED STATES TAX COURT
SURESH ANISETTI, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 18423-17S L. Filed January 14, 2020.
Steven Z. Ettinger, for petitioner.
Rachel L. Schiffman, for respondent.
SUMMARY OPINION
COLVIN, Judge: This case was heard pursuant to the provisions of section
74631 of the Internal Revenue Code in effect when the petition was filed.
1 Section references are to the Internal Revenue Code in effect at all relevant times. Rule references are to the Tax Court Rules of Practice and Procedure. We (continued...) -2-
Pursuant to section 7463(b), the decision to be entered is not reviewable by any
other court, and this opinion shall not be treated as precedent for any other case.
In a Notice of Determination Concerning Collection Action(s) Under
Section 6320 and/or 6330 (notice of determination), respondent sustained a notice
of intent to levy (notice of levy) issued with respect to what respondent contends
is petitioner’s unpaid tax liability for 2014. This case is now before the Court on
respondent’s motion for summary judgment. We conclude that there is no dispute
of material fact, that respondent’s determination was not an abuse of discretion,
and that respondent is entitled to summary judgment.
Background
Some of the facts have been stipulated and are so found.
A. The Notice of Levy and Petitioner’s Request for a Collection Due Process Hearing
On February 3, 2017, respondent sent petitioner the notice of levy which
stated that petitioner owed $9,095 in tax, $446 in additional interest, and $1,225
for a section 6651(a)(2) addition to tax for failure to timely pay tax for 2014.
Petitioner timely sent Form 12153, Request for a Collection Due Process or
1 (...continued) round monetary amounts to the nearest dollar. Petitioner was a resident of New Jersey when the petition was filed. -3-
Equivalent Hearing (CDP hearing request). In his CDP hearing request petitioner
alleged that respondent’s determination of the amount of his tax liability was
incorrect because petitioner is entitled to unspecified deductions for 2014 not
allowed by respondent. In the letter petitioner also said that he would like to
discuss an offer-in-compromise or have the Internal Revenue Service
acknowledge that he cannot pay the balance respondent alleges he owes. He also
stated that: (1) he is unemployed, (2) his reasonable expenses exceed his income,
(3) he had “been suffering from * * * serious/major depression to heart, liver and
other[] [illnesses] for more than a decade”, and (4) because of his poor health he is
not liable for any penalties.
B. The CDP Hearing
On April 21, 2017, the settlement officer (SO) assigned to petitioner’s case
sent him a letter stating that she had scheduled a telephone CDP hearing with him
for May 22, 2017. The record includes the first and last pages of the letter but
does not show how many pages are missing. Respondent contends that on the
missing page or pages the SO asked petitioner to submit: (1) Form 1040X,
Amended U.S. Individual Income Tax Return, for 2014 if he wanted to amend his
2014 tax return; (2) Form 433-A, Collection Information Statement for Wage
Earners and Self-Employed Individuals (with at least the most recent three months -4-
of documents substantiating the information stated on the Form 433-A); (3) Form
656, Offer in Compromise; and (4) a copy of his 2016 tax return. The last page of
the letter directed petitioner to send the requested documents to the SO by May 5,
2017. Petitioner did not submit any documents by May 5 or speak by telephone to
the SO on May 22, 2017.
The SO sent another letter to petitioner on May 26, 2017. The record
includes only the first page of that letter. On that page the SO asked petitioner to
provide items (1) to (3) listed above. That page does not provide a deadline for
petitioner to respond or request that he submit a copy of his 2016 return.
Petitioner left voice mails for the SO on June 16 and 19, 2017. The SO
returned petitioner’s calls on June 19, 2017. During the call petitioner said that he
had lost his phone and misplaced the April 21, 2017, letter. The SO rescheduled
the CDP hearing for July 6, 2017, and said that petitioner must submit the
documents she had requested by July 3, 2017. Petitioner stated that he would fax
the information to the SO, but he did not do so.
The SO and petitioner spoke by phone on July 6, 2017. During the call
petitioner expressed confusion about the forms and said he might need help in
completing them. The SO explained to petitioner how to complete the Form
433-A and told him that he must submit the documents to her by July 13. -5-
Petitioner neither objected to that deadline nor submitted the documents.
Petitioner did not present documents or other information relating to the amount of
his underlying liability during the CDP hearing.
On July 25, 2017, respondent sent petitioner a notice of determination
sustaining the notice of levy. Petitioner then timely petitioned this Court, asking
that we remand the case to give him more time to submit the required materials.
Discussion
Respondent contends that there is no dispute of material fact and that the
determination in the notice was not an abuse of discretion. Petitioner opposes
respondent’s motion for reasons discussed below.
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 “there is no genuine dispute as to any material fact and * * * 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). Respondent, as the party moving for summary judgment, bears the burden
of showing that there is no genuine dispute as to any material fact, and all factual -6-
inferences will be drawn in a manner most favorable to petitioner.2 See
Sundstrand Corp v. Commissioner, 98 T.C. at 520.
During a CDP hearing a taxpayer may dispute the Commissioner’s
determination of the existence or amount of the underlying tax liability if the
taxpayer did not otherwise have an opportunity to dispute the tax liability.
Sec. 6330(c)(2)(B). However, a taxpayer may not dispute the Commissioner’s
determination of the existence or amount of the underlying tax liability in this
Court if the taxpayer did not present sufficient information during the CDP
hearing process with respect to that issue after being given a reasonable
opportunity to do so. Delgado v. Commissioner, T.C. Memo. 2011-240; sec.
301.6330-1(f)(2), Q&A-F3, Proced. & Admin. Regs. We review the
Commissioner’s determination de novo if the existence or amount of the
taxpayer’s underlying liability is properly at issue. Goza v. Commissioner, 114
T.C. 176 , 181-182 (2000). We review all other issues considered in a CDP
hearing for abuse of discretion. Id. at 182. An abuse of discretion occurs if the
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T.C. Summary Opinion 2020-3
UNITED STATES TAX COURT
SURESH ANISETTI, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 18423-17S L. Filed January 14, 2020.
Steven Z. Ettinger, for petitioner.
Rachel L. Schiffman, for respondent.
SUMMARY OPINION
COLVIN, Judge: This case was heard pursuant to the provisions of section
74631 of the Internal Revenue Code in effect when the petition was filed.
1 Section references are to the Internal Revenue Code in effect at all relevant times. Rule references are to the Tax Court Rules of Practice and Procedure. We (continued...) -2-
Pursuant to section 7463(b), the decision to be entered is not reviewable by any
other court, and this opinion shall not be treated as precedent for any other case.
In a Notice of Determination Concerning Collection Action(s) Under
Section 6320 and/or 6330 (notice of determination), respondent sustained a notice
of intent to levy (notice of levy) issued with respect to what respondent contends
is petitioner’s unpaid tax liability for 2014. This case is now before the Court on
respondent’s motion for summary judgment. We conclude that there is no dispute
of material fact, that respondent’s determination was not an abuse of discretion,
and that respondent is entitled to summary judgment.
Background
Some of the facts have been stipulated and are so found.
A. The Notice of Levy and Petitioner’s Request for a Collection Due Process Hearing
On February 3, 2017, respondent sent petitioner the notice of levy which
stated that petitioner owed $9,095 in tax, $446 in additional interest, and $1,225
for a section 6651(a)(2) addition to tax for failure to timely pay tax for 2014.
Petitioner timely sent Form 12153, Request for a Collection Due Process or
1 (...continued) round monetary amounts to the nearest dollar. Petitioner was a resident of New Jersey when the petition was filed. -3-
Equivalent Hearing (CDP hearing request). In his CDP hearing request petitioner
alleged that respondent’s determination of the amount of his tax liability was
incorrect because petitioner is entitled to unspecified deductions for 2014 not
allowed by respondent. In the letter petitioner also said that he would like to
discuss an offer-in-compromise or have the Internal Revenue Service
acknowledge that he cannot pay the balance respondent alleges he owes. He also
stated that: (1) he is unemployed, (2) his reasonable expenses exceed his income,
(3) he had “been suffering from * * * serious/major depression to heart, liver and
other[] [illnesses] for more than a decade”, and (4) because of his poor health he is
not liable for any penalties.
B. The CDP Hearing
On April 21, 2017, the settlement officer (SO) assigned to petitioner’s case
sent him a letter stating that she had scheduled a telephone CDP hearing with him
for May 22, 2017. The record includes the first and last pages of the letter but
does not show how many pages are missing. Respondent contends that on the
missing page or pages the SO asked petitioner to submit: (1) Form 1040X,
Amended U.S. Individual Income Tax Return, for 2014 if he wanted to amend his
2014 tax return; (2) Form 433-A, Collection Information Statement for Wage
Earners and Self-Employed Individuals (with at least the most recent three months -4-
of documents substantiating the information stated on the Form 433-A); (3) Form
656, Offer in Compromise; and (4) a copy of his 2016 tax return. The last page of
the letter directed petitioner to send the requested documents to the SO by May 5,
2017. Petitioner did not submit any documents by May 5 or speak by telephone to
the SO on May 22, 2017.
The SO sent another letter to petitioner on May 26, 2017. The record
includes only the first page of that letter. On that page the SO asked petitioner to
provide items (1) to (3) listed above. That page does not provide a deadline for
petitioner to respond or request that he submit a copy of his 2016 return.
Petitioner left voice mails for the SO on June 16 and 19, 2017. The SO
returned petitioner’s calls on June 19, 2017. During the call petitioner said that he
had lost his phone and misplaced the April 21, 2017, letter. The SO rescheduled
the CDP hearing for July 6, 2017, and said that petitioner must submit the
documents she had requested by July 3, 2017. Petitioner stated that he would fax
the information to the SO, but he did not do so.
The SO and petitioner spoke by phone on July 6, 2017. During the call
petitioner expressed confusion about the forms and said he might need help in
completing them. The SO explained to petitioner how to complete the Form
433-A and told him that he must submit the documents to her by July 13. -5-
Petitioner neither objected to that deadline nor submitted the documents.
Petitioner did not present documents or other information relating to the amount of
his underlying liability during the CDP hearing.
On July 25, 2017, respondent sent petitioner a notice of determination
sustaining the notice of levy. Petitioner then timely petitioned this Court, asking
that we remand the case to give him more time to submit the required materials.
Discussion
Respondent contends that there is no dispute of material fact and that the
determination in the notice was not an abuse of discretion. Petitioner opposes
respondent’s motion for reasons discussed below.
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 “there is no genuine dispute as to any material fact and * * * 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). Respondent, as the party moving for summary judgment, bears the burden
of showing that there is no genuine dispute as to any material fact, and all factual -6-
inferences will be drawn in a manner most favorable to petitioner.2 See
Sundstrand Corp v. Commissioner, 98 T.C. at 520.
During a CDP hearing a taxpayer may dispute the Commissioner’s
determination of the existence or amount of the underlying tax liability if the
taxpayer did not otherwise have an opportunity to dispute the tax liability.
Sec. 6330(c)(2)(B). However, a taxpayer may not dispute the Commissioner’s
determination of the existence or amount of the underlying tax liability in this
Court if the taxpayer did not present sufficient information during the CDP
hearing process with respect to that issue after being given a reasonable
opportunity to do so. Delgado v. Commissioner, T.C. Memo. 2011-240; sec.
301.6330-1(f)(2), Q&A-F3, Proced. & Admin. Regs. We review the
Commissioner’s determination de novo if the existence or amount of the
taxpayer’s underlying liability is properly at issue. Goza v. Commissioner, 114
T.C. 176 , 181-182 (2000). We review all other issues considered in a CDP
hearing for abuse of discretion. Id. at 182. An abuse of discretion occurs if the
SO exercises his or her discretion arbitrarily, capriciously, or without sound basis
in fact or law. See Giamelli v. Commissioner, 129 T.C. 107, 111 (2007).
2 We held a hearing on respondent’s motion for summary judgment. Nothing in the hearing record supports a conclusion different from the one we have reached here. -7-
B. Petitioner’s Contentions
1. Underlying Tax Liability
Petitioner contends that he is entitled to claim unspecified additional
deductions for his 2014 tax year. Respondent contends, and we agree, that
petitioner cannot now dispute the existence or amount of his underlying tax
liability, including the addition to tax, because he did not provide sufficient
information regarding the amount of his underlying liability during the CDP
hearing. See Pough v. Commissioner, 135 T.C. 344, 349-352 (2010).
2. Collection Alternatives
Petitioner contends that the SO abused her discretion by refusing to discuss
a collection alternative. We disagree. Petitioner did not submit any of the
documents (such as a completed Form 656) requested by the SO during the CDP
process. The SO gave petitioner adequate notice to provide the documents. The
SO attempted to accommodate petitioner by extending the deadline to provide the
information. Without the documents the SO could not evaluate petitioner’s
requests.
Petitioner contends that his failure to provide financial information
requested by respondent was due to poor health and that the state of his health is
an issue of material fact. Petitioner has offered no documentation to substantiate -8-
his health conditions. Petitioner has made minimal efforts to cooperate with
respondent’s reasonable requests for information even though he was able to
timely request a CDP hearing and file a petition with this Court. Under these
circumstances respondent’s issuance of a notice of determination without
consideration of petitioner’s request for collection alternatives was not an abuse of
discretion.
3. Alimony
In petitioner’s opposition to the motion for summary judgment he stated that
in June 2018, 10 months after he had filed his petition with the Court, the child
support program of the New Jersey Department of Human Services notified him
that he had received overpayments of alimony totaling $8,500 in 2014 and (on the
basis of his testimony at our hearing on respondent’s motion) amounts less than
$8,500 per year in 2015 and 2016; that he was required to repay the overpayments
through reductions in his alimony payments, apparently beginning in 2017; that
the balance owing as of July 2018 is around $14,000; and that after his
overpayments are recouped his annual alimony payment will be $56,000, not
$64,500.
Petitioner contends that this development is a change of material fact that
changes his tax liability for 2014 and precludes summary judgment. Contrary to -9-
petitioner’s understanding, because he is a cash basis taxpayer, repayment in a
later year of an overpayment received in 2014 does not change his tax liability for
2014. Instead, he is taxable on the amount of income he actually received in each
year. See Krim-Ko Corp. v. Commissioner, 16 T.C. 31, 40 (1951); Hamlett v.
Commissioner, T.C. Memo. 2004-78. Thus, the tax savings (if any) from the
repayment in a later year of his 2014-16 alimony overpayments begin in 2017. On
the basis of this record this changed circumstance does not merit remand of the
case.
C. Conclusion
Resolution by summary judgment is appropriate if there are no genuine
disputes regarding any material fact and the moving party is entitled to judgment
as a matter of law. Rule 121(b); Naftel v. Commissioner, 85 T.C. 527, 529 (1985).
Upon due consideration of the foregoing, we will grant respondent’s motion
for summary judgment. Respondent’s determination as set forth in the notice of
determination dated July 25, 2017, upon which this case is based, is sustained.
An appropriate order and decision
will be entered for respondent.