Hoyle v. Comm'r of Internal Revenue

• Decision Date: 23 May 2011
• Docket Number: No. 7217–04L.,7217–04L.
• Citation: 136 T.C. 463,136 T.C. No. 22
• Parties: Martin David HOYLE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent.*
• Court: U.S. Tax Court

136 T.C. 463

136 T.C. No. 22

Martin David HOYLE, Petitioner

v.COMMISSIONER OF INTERNAL REVENUE, Respondent.*

No. 7217–04L.

United States Tax Court.

May 23, 2011.

After this Court's remand of the instant case for R's Appeals Office to determine, pursuant to I.R.C. sec. 6330(c)(1), whether R properly sent P a notice of deficiency, R seeks, by way of a motion in limine, to have the administrative record from the remand hearing admitted into evidence. P objects on three grounds: (1) The matters in the record on remand were not considered at the original hearing; (2) R's counsel and the settlement officer engaged in improper ex parte contact; and (3) documents in the administrative record on remand are inadmissible hearsay. During the pendency of the instant case, R refiled the notice of Federal tax lien (NFTL) in issue. P moves to dismiss respondent's refiled NFTL.

Held: At the hearing on remand, R's settlement officer was not limited to a consideration of matters considered by the Appeals officer in the original administrative hearing.

Held, further, R's counsel and the settlement officer did not engage in prohibited ex parte contact.

Held, further, the administrative record, once it has been authenticated, is admissible to show information available to the Appeals Office during the administrative consideration of petitioner's case on remand. Until documents from that record are offered to prove the truth of the matters asserted therein, it is unnecessary to rule on P's hearsay objection.

Held, further, R may refile the NFTL.

Martin David Hoyle, pro se.

Beth A. Nunnink, for respondent.

SUPPLEMENTAL OPINION

WELLS, Judge:

The instant case is before the Court on respondent's motion in limine and petitioner's motion to dismiss respondent's lien.¹ We must decide: (1) Whether the proposed Supplemental Stipulation of Facts and exhibits should be admitted into evidence; and (2) whether respondent may refile a notice of Federal tax lien (NFTL) during the pendency of these proceedings.

Background

Many of the relevant facts are set forth in our prior Opinion in the instant case, Hoyle v. Commissioner, 131 T.C. 197, 2008 WL 5156596 (2008) (prior Opinion), and are incorporated by reference. Additionally, some of the facts discussed in this Opinion are taken from the parties' moving papers for the purpose of ruling on respondent's motion in limine and petitioner's motions.

At the time he filed the petition, petitioner resided in Louisiana.

The record contains a notice of deficiency dated March 28, 1996, for petitioner's 1993 tax year. On August 26, 1996, respondent assessed the amounts stated in the notice of deficiency.

On September 12, 2002, respondent sent petitioner a Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320 with respect to petitioner's unpaid tax liability for 1993. On or around September 17, 2002, respondent filed an NFTL in Jefferson Parish, Louisiana (original NFTL). The original NFTL indicated, on its face, that unless refiled by September 25, 2006, the original NFTL would operate as a certificate of release of lien as defined in section 6325(a).² Petitioner timely requested a review of the original NFTL with respondent's Appeals Office.

On March 31, 2004, respondent's Appeals Office sent to petitioner a notice of determination upholding the original NFTL. Petitioner timely filed a petition with this Court.

On December 3, 2008, we issued our prior Opinion. In our prior Opinion we stated:

we are unable to ascertain the basis for the Appeals officer's verification that all requirements of applicable law were met. Consequently, we will remand this case to the Appeals Office for it to clarify the record as to what the Appeals officer relied upon in determining that the notice of deficiency was properly sent to petitioner. [Fn. ref. omitted.]

Hoyle v. Commissioner, supra at 205. In a footnote, we noted: “We are remanding this case in order for the Appeals Office to ‘examine underlying documents' and make a record of what was relied upon in making the determination that the notice of deficiency was ‘properly sent’.” Id. n. 7 (quoting Chief Counsel Notice CC–2006–19 (Aug. 18, 2006)). On December 19, 2008, we issued an order stating that “this case is remanded to respondent's Office of Appeals for the purpose of clarifying the record regarding the issue of what the Appeals officer relied upon in determining that the notice of deficiency was properly sent to petitioner.”

On December 22, 2008, respondent's counsel Beth Nunnink (Ms. Nunnink) sent a letter to Supervisory Revenue Officer Clifford Whitely (Mr. Whitely) regarding the instant case. In that letter, Ms. Nunnink stated that she was forwarding the administrative file to which she had added a copy of the U.S. Postal Service certified mail list dated March 28, 1996, which lists notices of deficiency sent to petitioner and Wayne Leland, to whom petitioner had delegated his power of attorney (certified mail list). Petitioner was sent a copy of the December 22, 2008, letter. On January 20, 2009, Settlement Officer Magee (Ms. Magee) was assigned to the case.

Ms. Nunnink and Ms. Magee had several conversations after the remand of this case to respondent's Appeals Office. On January 20, 2009, Ms. Magee and Ms. Nunnink conferred by telephone and email regarding the case. In those communications Ms. Nunnink advised Ms. Magee to give petitioner a face-to-face conference and to decide four issues: (1) Whether the notice of deficiency was sent to petitioner's last known address; (2) whether the assessment was valid; (3) whether petitioner could raise the underlying liability on the ground that he had not received the notice of deficiency; and (4) the items relied on to make the foregoing determinations.

On January 23, 2009, Ms. Magee advised Ms. Nunnink that she would have a face-to-face conference with petitioner on February 19, 2009. Ms. Nunnink advised Ms. Magee that petitioner's amended return for his 1993 tax year had been admitted into evidence at trial. Ms. Magee and Ms. Nunnink conferred regarding status reports to the Court. Ms. Nunnink reviewed Ms. Magee's draft supplemental notice of determination to ascertain whether all issues the Court had required to be addressed were included in Ms. Magee's determination and that all explanations were complete.

On February 23, 2009, Ms. Magee asked Ms. Nunnink a legal question: If petitioner had previously received a notice of deficiency, could he still raise his underlying tax liability as an issue now? After some research on the subject, Ms. Nunnink advised Ms. Magee that if petitioner had received a notice, he could no longer contest his underlying liability.

On February 19, 2009, Ms. Magee discovered that the refiling date stated on the original NFTL had passed. Throughout several conversations Ms. Nunnink kept Ms. Magee informed about the refiling of the NFTL, and they discussed who should speak with petitioner regarding the refiling. On March 3, 2009, respondent filed Form 12474–A, Revocation of Certificate of Release of Federal Tax Lien, with the Clerk of Court of Jefferson Parish, Louisiana. Immediately thereafter, respondent refiled the NFTL for petitioner's 1993 tax year with the Clerk of Court of Jefferson Parish, Louisiana.

On June 26, 2009, Ms. Magee issued a Supplemental Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330.

On March 19, 2010, respondent sent to petitioner a supplemental stipulation of facts to which was attached the record from the hearing on remand with Ms. Magee, including the certified mail list. Petitioner raised objections to the stipulation, and on May 3, 2010, respondent filed the instant motion in limine.

Discussion

Respondent contends that we should rule in limine that the following documents will be admitted into the record: (1) The original administrative record as submitted into evidence at trial, before the issuance of our prior Opinion remanding the case to respondent's Appeals Office; (2) several previous filings made with the Court; ³ and (3) several documents that Ms. Magee created or considered on remand (administrative record on remand). Evidence previously admitted at trial, like the trial transcript itself, is already in the record, and we therefore need not address its admissibility. The pleadings, motions, briefs, etc., previously filed with the Court also are part of the record in this case, and unless and until they are offered into evidence for a particular purpose, we need not address their admissibility as evidence. As to the administrative record on remand, respondent contends that it is admissible under the business records exception to the hearsay rule. See Fed.R.Evid. 803(6).⁴

Petitioner contends that the administrative record on remand is not admissible into evidence because the matters therein were not considered at the original administrative hearing before remand, that Ms. Nunnink and Ms. Magee had improper ex parte contact regarding the hearing on remand, and that the documents in the administrative record on remand, specifically a certified mail list showing the mailing of the notice of deficiency in issue to petitioner and to his representative, are inadmissible hearsay on account of a lack of trustworthiness. See id.

A taxpayer is entitled to a single hearing under section 6320 with respect to the year to which the unpaid liability relates. Sec. 6320(b)(2); Freije v. Commissioner, 131 T.C. 1, 5, 2008 WL 2651427 (2008), affd. 325 Fed. Appx. 448 (7th Cir.2009); see also Kelby v. Commissioner, 130 T.C. 79, 86, 2008 WL 1865699 (2008) (similar holding for section 6330 cases). When this Court remands a case to the Appeals Office, the hearing on remand is a supplement to the taxpayer's original section 6320 hearing. Kelby v. Commissioner, supra at 86; see also Olsen v. United States, 414 F.3d 144, 155 (1st Cir.2005) (“In the event the administrative record is found inadequate for...