Baltic v. Comm'r

OPINION

The Code encourages taxpayers to settle their differences with the IRS by compromise rather than litigation. One type of compromise is a compromise based on doubt as to liability, and that’s the kind that Peter and Karen Baltic offered to the IRS. But they made their offer just as the IRS was poised to begin seizing their property — and after they had had a chance to contest their liability in our Court. Section 63301 says that taxpayers like the Baltics can’t challenge their “underlying tax liability.” The main question in this case — which we’ve apparently never quite squarely answered — is whether their making an offer-in-compromise based on doubt as to liability (an oic-datl) is a challenge to the “underlying tax liability.”

Background

In February 2003, the Commissioner sent the Baltics a notice of deficiency saying they owed over $100,000 in income tax and penalties for 1999. The Baltics don’t dispute that they received the notice, and don’t dispute that they never filed a petition in this Court to challenge it. Since the Baltics didn’t challenge the deficiency, the Commissioner assessed it. The Baltics didn’t pay and so, in June 2004, the Commissioner sent them a notice under section 6320 that he had filed a federal tax lien against their property, and a notice under section 6330 that he intended to levy their property to collect the unpaid tax. The Baltics promptly requested a collection due process (cdp) hearing. Their request stated that “We disagree with the determination of taxes and additions owed, and the calculations of the amounts, if any.” Before the hearing was scheduled, they submitted an OIC-DATL that covered not just 1999, but all tax years from 1997 through 2003, offering $18,699 to compromise their entire income tax liability for all those years. They also submitted amended tax returns for 1997-19992 and 2003, and original tax returns for the years 2000-2002.3

The settlement officer who held the cdp hearing told the Baltics that they couldn’t challenge the amount or existence of their tax liability for 1999 because they had had a chance to challenge the liability when they received a notice of deficiency and hadn’t done so. She also explained to them that, even though she herself couldn’t consider the OIC-DATL as part of the CDP hearing, an Appeals officer within another part of the IRS would consider it and a revenue officer in yet a third part of the IRS would examine the Baltics’ amended 1999 return in what is called an “audit reconsideration.” The settlement officer then ended the CDP hearing, and sent the Baltics a notice in which she determined that collection by levy would be postponed until the IRS both decided whether to accept the OIC-DATL and finished its “audit reconsideration,” but that the lien would be sustained. (Sustaining the lien protects the government’s priority over other creditors.) The Baltics offered no other collection alternatives.

The Baltics now argue that the settlement officer’s refusal to consider the oic-datl herself,4 or at least to wait before issuing the notice of determination until the other parts of the IRS finished looking at the OIC-DATL and amended return, was an abuse of discretion. The Commissioner moved for summary judgment, and the motion was argued during a trial session in Las Vegas.5

Discussion

Summary judgment is appropriate where it is shown that “there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law.” Rule 121(b); Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). Summary judgment is proper here since the parties don’t dispute the facts at all, but disagree only about the law: Did the settlement officer abuse her discretion by issuing the notice of determination without considering the Baltics’ pending OIC-DATL or amended 1999 return?

Section 6330(c)(2)(B) allows a taxpayer to challenge the existence or amount of his underlying tax liability if he neither received a notice of deficiency nor otherwise had an opportunity to dispute it. The Baltics’ first line of attack is that they should have been allowed to challenge their underlying liability because section 6330(c)(2)(B) — though it allows challenges to “the underlying tax liability for any tax period if the person did not receive any statutory notice of deficiency” — doesn’t say that it allows such challenges “only if the person did not receive any statutory notice of deficiency.”

This parsing has no support in any caselaw, as the Baltics’ counsel admitted at oral argument. And we won’t be creating any here: Congress used section 6330(c) — and only section 6330(c) — to describe how a CDP hearing would work. We find no authority elsewhere in the Code to read that section’s command that the IRS allow challenges to liability in some situations to mean that the IRS must allow challenges to liability in all situations.

The Baltics’ next sally looks more effective. They claim that making an OIC-DATL is not a challenge to their underlying liability. If it’s not, then it should have been considered at the CDP hearing, because section 6330(c)(2)(A)(iii) lists OlCs as a collection alternative that a taxpayer may raise at the hearing. We have, however, already come very close to holding that oic-DATLs are a prohibited challenge to the underlying tax liability. In Hajiyani v. Commissioner, T.C. Memo. 2005-198, we wrote in a footnote that an OIC-datl “would address the merits of the underlying liability. Since petitioner is precluded from questioning the underlying liabilities, his offer would not provide him any relief. . . .” But the Baltics are right in noting that Hajiyani — in the text — held that the Commissioner was justified in not considering an OIC-DATL because the taxpayers hadn’t even submitted one before the notice of determination came out. The same is true of the taxpayers in Jones v. Commissioner, T.C. Memo. 2007-142, and in Kindred v. Commissioner, 454 F.3d 688, 696 (7th Cir. 2006) (affirming an unpublished order granting the Commissioner summary judgment).

We’ve also held that the Commissioner didn’t abuse his discretion in rejecting an OIC-DATL where the underlying tax liability was previously stipulated in a Tax Court decision, because a stipulated tax liability can’t validly be considered a “doubtful liability” under the applicable regulation. Sec. 301.7122-l(b)(l), Proced. & Admin. Regs.; Oyer v. Commissioner, T.C. Memo. 2003-178, affd. 97 Fed. Appx. 68 (8th Cir. 2004).

We recognize that the Baltics’ case is a bit different. They plausibly distinguished their situation from cases like Hajiyani by having made sure that the IRS employee conducting their CDP hearing had an OIC-DATL sitting in front of her. And, though they didn’t discuss Oyer, the Baltics could likewise distinguish that case from theirs by saying that they never signed a stipulated decision, but simply chose not to start a Tax Court case when they had a chance.

The Baltics also have one case, Siquieros v. United States, 94 AFTR 2d 2004-5518, 2005-1 USTC par. 50,244 (W.D. Tex. 2004), affd. 124 Fed. Appx. 279 (5th Cir. 2005), that they argue supports them. Or at least one sentence in that case that supports them: “Her [i.e., Siquieros’s] offer based on doubt as to liability is not synonymous with a challenge to the underlying liability.” Id. at 2004-5524, 2005-1 USTC par. 50,244, at 87,570.

The quote is accurate, but Siquieros remains the thinnest of supports for any general proposition that an OIC-DATL is not a challenge to an “underlying tax liability.”6 It is, for one thing, a responsible-party, trust-fund case.7 And Siquieros was challenging underlying liability only in the sense that she was contesting her own responsibility for the tax, not in the sense of challenging the amount of that tax. Siquieros had not had an opportunity before her CDP hearing to challenge her responsibility for the unpaid tax; the Baltics did. And we conclude that that is an important — indeed decisive-difference. The word “liability” in section 6330(c)(2)(B) and section 301.7122-l(b)(l), Proced. & Admin. Regs., refers not just to an amount of tax owed for a particular period but also the amount owed by a particular person for a particular period. Section 6203, defining a tax assessment, states that an assessment is the formal recording of a taxpayer’s tax liability, and the accompanying regulation requires the summary record of assessment to “provide identification of the taxpayer, the character of the liability assessed, the taxable period, if applicable, and the amount of the assessment.” Sec. 301.6203-1, Proced. & Admin. Regs. Siquieros was arguing only that she herself shouldn’t be liable for her employer’s failure to pay over the taxes because she was only a secretary.

The Baltics are not arguing that the IRS is going after the wrong person. Neither Baltic, for example, is claiming innocent-spouse relief; they dispute only the amount of tax due. Which is, of course, exactly what they could have challenged by filing a petition when they got their notice of deficiency. We therefore unequivocally hold that a challenge to the amount of the tax liability made in the form of an OIC-DATL by a taxpayer who has received a notice of deficiency is a challenge to the underlying tax liability. Because the Baltics already had their chance to challenge that liability, section 6330(c)(2)(B) bars them from challenging it again.8

That leaves only the settlement officer’s refusal to wait until the IRS reviewed the OIC-DATL and completed its audit reconsideration (which, we should note, no one doubts is a form of challenge to their underlying tax liability). The Bal-tics contend that the Commissioner’s refusal was itself an abuse of discretion. We have already rejected this argument when a taxpayer urged waiting for an audit reconsideration. Jones v. Commissioner, T.C. Memo. 2007-142. Adding a desire to wait for consideration of an OIC-DATL as well adds nothing to the argument: The settlement officer here was just heeding the exhortation of the applicable regulation to issue a notice of determination as expeditiously as possible. Sec. 301.6330-l(e)(3), Q&A-E9, Proced. & Admin. Regs.

The purpose of a CDP hearing is to balance the government’s requirement for effective tax administration with the taxpayer’s concern that collection be minimally intrusive. By deciding to hold off on collection by levy but preserve the government’s lien priority while other employees of the IRS considered the Baltic’s OIC-DATL and various late-filed returns, the Commissioner exercised discretion in a completely reasonable way, and so

An order and decision in favor of respondent will be entered.