DAVID KEEFE & CANDACE KEEFE, Petitioners,
COMMISSIONER OF INTERNAL REVENUE, Respondent
No. 19134-19 L
United States Tax Court
April 8, 2020
ORDER AND DECISION
L. Leyden Special Trial Judge
timely filed a petition in this case on October 23, 2019.
Petitioners seek review of a Notice of Determination
Concerning Collection Action(s) Under Section 6320 and/or
6330 (notice of determination), dated September 20,
2019. The notice of determination
sustained a proposed levy with respect to petitioners'
unpaid tax liability for 2008. On February 6, 2020,
respondent filed a Motion for Summary Judgment (motion)
supported by a declaration of Appeals Officer Nicole L.
Mullin. On February 28, 2020, petitioners filed an Opposition
to Motion for Summary Judgment (opposition). By Order dated
March 24, 2020, respondent's motion was assigned to the
undersigned for disposition.
review of the record on respondent's motion, the Court
concludes that there are not any genuine issues of material
fact and that respondent is entitled to judgment as a matter
of law. More specifically, the undisputed material facts show
that: (1) petitioners are not entitled to challenge their
unpaid liability for 2008 in this collection case; and (2)
the Appeals officer did not abuse her discretion in not
processing petitioners' offer in compromise based on
doubt as to liability or in declining to stay collection
pending the outcome of petitioners' appeal to the U.S.
Court of Appeals for the Second Circuit of the decision
entered against them in their Tax Court deficiency case for
following facts are established by the record and/or are not
disputed by the parties.
14, 2014, respondent issued a notice of deficiency to
petitioners for taxable years 2008, 2009, and 2010. On June
30, 2014, petitioners filed a petition, at docket No.
15189-14, challenging that deficiency notice. Following a
trial in that case, on June 19, 2018, the Court entered its
decision and with respect to tax year 2008 decided that there
was due from petitioners the following deficiency in Federal
income tax, addition to tax, and accuracy-related penalty:
Penalty/Addition to Tax
August 9, 2018, petitioners filed a notice of appeal from the
decision of the Court with respect to 2008, 2009 and 2010 to
the U.S. Court of Appeals for the Second Circuit. Petitioners
did not post an appeal bond under section 7485. Currently,
that appeal remains pending before the U.S. Court of Appeals
for the Second Circuit.
to this Court's above decision, and as relevant to this
case, the Internal Revenue Service (IRS)
assessed the tax,
addition to tax, penalty and interest against petitioners for
2008. Petitioners did not remit payment.
April 1, 2019, the IRS issued to petitioners a Notice CP90,
Intent to Seize Your Assets and Notice of Your Right to a
Hearing for 2008, 2009, and 2010. On April 4, 2019,
petitioners submitted a timely Form 12153, Request for a
Collection Due Process or Equivalent Hearing, only with
respect to 2008.
Form 12153, petitioners checked the boxes for "Offer in
Compromise" and "I Cannot Pay Balance" as
collection alternatives and wrote "[t]he taxpayer wishes
to propose a collection alternative and reserves the right to
supplement this Request by submitting to the Appeals Officer
to whom this is assigned additional documents and information
as may be necessary."
9, 2019, IRS Appeals Officer Nicole Mullin (AO Mullin) held a
telephonic conference with petitioners' representative.
At that conference, the representative stated petitioners
would submit an offer in compromise. On July 24, 2019,
petitioners sent to AO Mullin a Form 656-L, Offer in
Compromise (Doubt as to Liability). In their Form 656-L
petitioners sought to compromise their liabilities for 2004
thru 2017. In an attachment to that Form 656-L petitioners
further requested "the decision regarding this request
and the case itself be placed on hold pending the outcome of
30, 2019, AO Mullin forwarded that Form 656-L to the
Centralized Offer In Compromise Unit in Brookhaven, New York
(Brookhaven COIC unit), for processing. The Brookhaven COIC
unit deemed petitioners' Form 656-L to be unprocessable
because, among other things, some of the liabilities
petitioners sought to compromise were liabilities
"pending and or finally determined by the Tax Court,
other courts or by the Commissioner's final closing
agreement." On August 6, 2019, AO Mullin informed
petitioners' representative that petitioners' Form
656-L was being returned unprocessed. AO Mullin further
informed petitioners' representative that she could
assist petitioners in determining if an...