Hartmann v. Commissioner of Internal Revenue, 091718 FEDTAX, 24214-17L

Docket Nº:24214-17L
Opinion Judge:RUWE, JUDGE.
Attorney:John A. Hartmann, pro se. Ina S. Weiner, for respondent.
Case Date:September 17, 2018
Court:United States Tax Court

T.C. Memo. 2018-154

JOHN A. HARTMANN, Petitioner



No. 24214-17L

United States Tax Court

September 17, 2018

John A. Hartmann, pro se.

Ina S. Weiner, for respondent.



Pursuant to sections 6320(c) and 6330(d)(1), 1 petitioner seeks review of the Internal Revenue Service (IRS) Office of Appeals determinations to sustain the filing of a notice of Federal tax lien (NFTL) and a proposed levy to collect petitioner's unpaid 2011 and 2013 Federal income tax liabilities. The issue before the Court is whether to grant respondent's motion for summary judgment (motion) pursuant to Rule 121.2 Respondent contends that no genuine dispute exists as to any material fact and that his determinations to collect petitioner's unpaid liabilities should be sustained. After reviewing these allegations along with the attached declaration and exhibits, we conclude that this case is appropriate for summary adjudication.


Petitioner is a lawyer who resided in New Jersey when he filed his petition.

Petitioner filed Federal income tax returns late for 2011 and 2013, and he failed to pay the liabilities reported on the returns. On November 2, 2016, the Commissioner issued petitioner a Letter 1058, Final Notice of Intent to Levy and Notice of Your Right to a Hearing, for his unpaid 2011 and 2013 income tax liabilities. On November 15, 2016, the Commissioner issued petitioner a Letter 3172, Notice of Federal Tax Lien and Your Right to a Hearing Under IRC 6320, for the 2011 and 2013 liabilities. Petitioner timely filed requests for a collection due process (CDP) hearing. With respect to the request related to the proposed levy, petitioner asked for an installment agreement or an offer-in-compromise or for his accounts to be placed in currently not collectible (CNC) status. With respect to the request related to the NFTL, petitioner asked for an installment agreement or for his accounts to be placed in CNC status, and he requested that the lien be withdrawn. Petitioner did not challenge his underlying liabilities.

On June 26, 2017, a settlement officer (SO) from the IRS Office of Appeals sent petitioner a letter acknowledging receipt of his requests for a CDP hearing and scheduling a telephone conference call to conduct the CDP hearing for July 28, 2017. In the letter the SO asked petitioner to submit within 14 days a Form 433-A, Collection Information Statement for Wage Earners and Self-Employed Individuals, and to submit within 21 days a signed 2015 Federal income tax return. The SO enclosed a Form 433-A with the letter, but petitioner contends that the "income and expense analysis" portion of the Form 433-A was not enclosed.

On July 13, 2017, petitioner requested that the CDP hearing be rescheduled, and the SO granted his request. On August 17, 2017, the SO received a Form 433-A and held a telephone conference call with petitioner. In the case activity records3 the SO stated that petitioner failed to complete the "income and expense analysis" portion of the Form 433-A, but petitioner claims that the SO did not mention this during the conference call. During the conference call petitioner reiterated his request for an installment agreement.

After the conference call the SO sent petitioner's Form 433-A to an IRS revenue officer (RO) for verification. On or about August 22, 2017, the RO sent petitioner a Form 9297, Summary of Taxpayer Contact, asking that by September 22, 2017, petitioner submit, among other things, the income and expense portion of the Form 433-A, proof of estimated tax payments for 2017, investment statements for the previous six months, and his most recent car payment statement. Petitioner responded to the information requests but did not submit all of the requested documents. Petitioner provided written explanations about some of the documents he submitted. With respect to the income and expense section of the Form 433-A, he claims he never received the page. With respect to the request for proof of estimated payments, petitioner conceded that he failed to make estimated payments for 2017 but that a payment for 2016 would be forthcoming.[4] With respect to the investment statements, petitioner provided a statement for the past four months for one of his accounts and provided no statements for his other two accounts listed on the Form 433-A. With respect to the last car payment statement, petitioner claimed that he does not "retain" car payment statements and provided one page of a lease agreement showing that a $571.08 payment is due monthly, but the portion of the lease agreement does not name the lessee. Petitioner provided no proof that he actually made the payments.

On October 23, 2017, the SO issued petitioner notices of determination sustaining the NFTL and the proposed levy because petitioner was "not in compliance with the required estimated tax payments for the current taxable year" and for his failure to submit the information requested in the Form 9297.5Petitioner timely filed a petition with this Court contending: (1) that there was no showing that estimated tax payments were due for 2017 and (2) that he submitted all of the materials requested in the Form 9297.


A. Summary Judgment

Summary judgment is designed to expedite litigation and to avoid unnecessary and expensive trials. Shiosaki v. Commissioner, 61 T.C. 861, 862 (1974). Under Rule 121(b), 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. Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff'd, 17 F.3d 965 (7th Cir. 1994). The burden is on the moving party to demonstrate that no genuine issue as to any material fact remains and that he is entitled to judgment as a matter of law. FPL Grp., Inc. & Subs. v. Commissioner, 116 T.C. 73,...

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