Combs v. Commissioner of Internal Revenue, 082818 FEDTAX, 784-18SL

Docket Nº:784-18SL
Opinion Judge:Diana L. Leyden, Special Trial Judge.
Case Date:August 28, 2018
Court:United States Tax Court

CARL COMBS, Petitioner,



No. 784-18SL

United States Tax Court

August 28, 2018


Diana L. Leyden, Special Trial Judge.

On January 16, 2018, petitioner timely filed a petition in this case. Petitioner seeks review of a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330 (notice of determination), dated December 15, 2017. [1] The notice of determination sustained a proposed levy with respect to petitioner's unpaid tax liabilities for 2005, 2006, 2007, 2008, and 2009.

On April 5, 2018, respondent filed a Motion for Summary Judgment (motion) under Rule 121. Respondent attached to his motion a declaration by Theresa A. Salinas, Internal Revenue Service (IRS)[2] Office of Appeals (Appeals Office) settlement officer. By order dated April 13, 2018, the Court directed petitioner to file a response to the motion. [3] Petitioner has not filed a response to the motion.3 On August 17, 2018, the Court issued an order assigning respondent's motion to the undersigned for disposition. See sec. 7443A(b)(4).

Upon review of the record on respondent's motion, the Court concludes that there are no genuine issues of material fact and that respondent is entitled to judgment as a matter of law.

Petitioner resided in Ohio at the time the petition was filed with the Court.


The record on respondent's motion establishes and the parties do not dispute the following.

Petitioner was required to file original individual Federal income tax returns for 2005, 2006, and 2007, but failed to do so. Consequently, the IRS prepared substitutes for returns for those years. Subsequently, petitioner filed original Federal tax returns for 2005, 2006, and 2007, showing self-assessed taxes. Petitioner also filed individual Federal income tax returns for 2008 and 2009 each showing self-assessed tax.

On May 31, 2017, the IRS issued a Notice of intent to levy, Intent to seize your property or rights to property (notice of intent to levy) with respect to petitioner's tax liabilities for 2005, 2006, 2007, 2008, and 2009. The notice of intent to levy advised petitioner of his right to request a collection due process (CDP) hearing.

Petitioner timely submitted a Form 12153, Request for a Collection Due Process or Equivalent Hearing, to challenge the proposed levy on which he indicated that he disputed income tax liabilities for "multiple years". Petitioner did not check a box for a collection alternative. Instead, petitioner checked the boxes "Discharge" and "Withdrawal" in the section labeled "Lien". As an explanation, petitioner wrote: "I am seeking professional help to weigh my options-I may want to file an offer in compromise (sic)".

Petitioner's CDP hearing request was assigned to settlement officer Theresa A. Salinas (SO). The SO verified that she did not have prior involvement with petitioner for the years at issue in this case.

The SO sent petitioner a letter which informed him that she had been assigned his case and scheduled a telephone CDP hearing on November 9, 2017. In that letter, the SO requested petitioner send her a completed Form 43 3-A, Collection Information Statement, three months of income and bank statements, and supporting documents to substantiate his expenses by October 30, 2017. The SO also informed petitioner that if he wanted to submit an offer-in-compromise he needed to prepare and submit a Form 656 and Form 433A-OIC.

In the same letter the SO informed petitioner that he qualified for an installment agreement for $1, 382 per month [4] with the first payment due December 28, 2017, and that such an installment agreement included the tax liability for 2003, a year for which the notice of intent to levy was not issued.

On November 9, 2017, the SO conducted the telephone CDP hearing. Petitioner told the SO that he had completed the financial information and needed to pick it up from his accountant. The SO told petitioner he needed to send it to her no later than November 24, 2017. She also informed petitioner that she would review the information he provided but would not ask for additional information. The SO told petitioner that if he submitted an offer-in-compromise to the IRS his CDP case would be suspended until the offer was reviewed and the IRS made a preliminary determination. Petitioner told the SO that he understood her instructions.

Petitioner called the SO on November 20, 2017, to tell her he owned property that his family lived in and he made the mortgage payments. The SO reminded petitioner to send the information she requested by...

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