                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                    ___________

                                 No. 06-3244/3245
                                  ___________

Fifty Below Sales & Marketing, Inc.,     *
a Minnesota corporation,                 *
                                         *
      Plaintiff/Appellant,               * Appeals from the United States
                                         * District Court for the
      v.                                 * District of Minnesota.
                                         *
United States of America,                *
                                         *
      Defendant/Appellee.                *
                                    ___________

                              Submitted: March 16, 2007
                                 Filed: August 14, 2007
                                  ___________

Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
                          ___________

JOHN R. GIBSON, Circuit Judge.

       Fifty Below Sales & Marketing, Inc., appeals from the district court's1 entry of
summary judgment against it in its two suits to require the Internal Revenue Service
to enter installment agreements in lieu of levying on Fifty Below's property. Fifty
Below contends that in declining to enter an installment agreement, the IRS appeals
officer failed to consider Fifty Below's current ability to make payments under a
proposed installment agreement and failed to balance the need for efficient tax


      1
        The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
collection against the need to minimize the intrusiveness of such collection. We
affirm the judgments of the district court.

        Fifty Below is a Minnesota corporation that provides Internet marketing
services and designs web pages. Since it began operations in 1997, it has had
employment tax arrearages, both in the taxes which it withholds from employees
(income and Federal Insurance Contribution Act (FICA) taxes) and in the Federal
Unemployment Act taxes it owes in its own right. It brought two suits under 26
U.S.C. § 6330(d)(1) (2000), amended by Pension Protection Act of 2006, Pub. L. No.
109-280, § 855(a), 120 Stat. 780, appealing from the decisions of the Internal Revenue
Service appeals officer in collections due process proceedings. The appeals officer
in the first proceeding concluded that the IRS's Notice of Intent to Levy, dated January
21, 2005, was properly issued. The second appeal involves a separate Notice of Intent
to Levy and a separate decision by the appeals officer; however, the parties agreed to
be bound in the second case by the result in the first.

       The district court's review of a collection due process decision rendered by an
appeals officer under section 6330 is limited to the administrative record before the
appeals officer, subject to exceptions that are not applicable here. Robinette v.
Comm'r, 439 F.3d 455, 461-62 (8th Cir. 2006); see generally Murphy v. Comm'r, 469
F.3d 27, 31 (1st Cir. 2006) (listing exceptions to administrative record rule). Review
of the administrative decision is markedly deferential: if the amount of tax owed is not
in dispute, courts may disturb the administrative decision only if it constituted "a clear
abuse of discretion in the sense of clear taxpayer abuse and unfairness by the IRS."
Robinette, 439 F.3d at 459 (internal quotation marks omitted). The courts so far have
not established a test for deciding when the IRS has committed "clear taxpayer abuse,"
but we can say with assurance that where the IRS followed the statutes and regulations
governing grants of relief, see Speltz v. Comm'r, 454 F.3d 782, 784-85 (8th Cir.
2006), and the appeals officer took into account the taxpayer's proposed alternative
and the statutory balancing test, followed the prescribed procedures, gave a reasoned

                                           -2-
decision, and did not rely on any improper criteria or facts that are contrary to the
evidence, we may not reverse simply because we would have weighed the equities
differently than the appeals officer did. See Orum v. Comm'r, 412 F.3d 819, 820-21
(7th Cir. 2005).

       Our review of the district court's decision is de novo. See Living Care
Alternatives of Utica, Inc. v. United States, 411 F.3d 621, 625 & n.4 (6th Cir. 2005)
(treating district court's decision under § 6330(d) as grant of summary judgment).

       The statute permits a taxpayer in a collection due process hearing to raise the
issue of "collection alternatives [to the proposed levy], which may include the posting
of a bond, the substitution of other assets, an installment agreement, or an offer-in-
compromise." § 6330(c)(2)(A)(iii). The IRS must follow any applicable statutory or
regulatory criteria that govern the question of whether to allow the particular
collection alternative the taxpayer has requested, Speltz, 454 F.3d at 784-85, in this
case, a collection installment agreement. The circumstances under which the IRS may
enter into an installment agreement are governed by 26 U.S.C. § 6159 and 26 C.F.R.
§ 301.6159-1. Fifty Below does not contend that the IRS district director violated any
particular provision of sections 6159 or 301.6159-1. Nor does it contend that the
appeals officer relied on factual determinations contrary to the evidence. Cf. Speltz,
454 F.3d at 783, 786 (declining to consider whether concededly incorrect factual
determination was abuse of discretion because issue not raised before Tax Court).
The appeals officer conducting the collection due process hearing must consider the
taxpayer's proffered collection alternatives, as well as "whether any proposed
collection action balances the need for the efficient collection of taxes with the
legitimate concern of the [taxpayer] that any collection action be no more intrusive
than necessary." § 6330(c)(3)(C).

       Fifty Below contends that the appeals officer failed to consider a relevant
factor, that is, whether Fifty Below has the current ability to pay in accordance with

                                         -3-
its proposed installment plan. To the contrary, the administrative record shows that
the appeals officer did consider whether Fifty Below could pay in accordance with its
proposal, but he concluded that it could not do so. The attachment to the Notice of
Determination Concerning Collection Action under Section 6330 states:

      You stated of [sic] Form 12153 that you wanted the IRS to accept a
      payment plan. The corporation first accrued an employment tax liability
      with its first employment tax return in 1997 and has been in collection
      status ever since. The corporation has had 8 years worth of opportunities
      to get and remain current. Unfortunately, other than 2001 and 2002, the
      corporation has failed to get and remain current. The result has been that
      the longer your business has been in business, the larger the employment
      tax liability has grown.
      The corporation has been given alternatives to collection action in the
      past including an accepted Offer in Compromise and installment
      agreements. These have been defaulted by the corporation due to
      noncompliance. The last tax due employment tax return was the recently
      filed 941 for the first quarter of 2005. Given all factors, including a
      multimillion dollar employment tax liability, noncompliance thru the last
      filed employment tax return, the length of this problem and past failures,
      Appeals has determined that an Installment Agreement is not appropriate
      ....

This excerpt shows that the appeals officer took into account Fifty Below's history of
failure to live up to two previous installment agreements and an earlier proposed Offer
in Compromise, as well as its noncompliance with current obligations. These are
legitimate considerations weighing against accepting a taxpayer's offer. Christopher
Cross, Inc. v. United States, 461 F.3d 610, 613 (5th Cir. 2006); Orum, 412 F.3d 820-
21. He also took into account the multi-million dollar size of the taxpayer's existing
liability, plus the fact that Fifty Below had continued to fall further and further behind
as time went on, which the IRS refers to as "pyramiding" taxes, and which
legitimately weighs against a taxpayer's request for a second (or third or fourth)
chance. Orum, 412 F.3d at 821. Moreover, the appeals officer's notes, which are part


                                           -4-
of the administrative record, 26 C.F.R. § 301.6330-1; see Robinette, 439 F.3d at 462,
are rife with discourse about whether Fifty Below could meet the proposed monthly
installments of $50,000, followed by $75,000, followed by $100,000. The appeals
officer was skeptical of Fifty Below's claim that it could cut its payroll expenses
enough to make a difference:

      The records provided by the taxpayer show that they have reduced
      payroll by 11%. Note too that the taxpayers made the same claim that
      they had reduced employees and gotten their financial house in order in
      2002. This was just before they accrued another $1,000,000 in new
      liabilities.

He did not believe that Fifty Below's business was likely to generate enough income
to avoid further pyramiding of taxes:

      In my 17 years working for the IRS, I have yet to see a small business
      (gross receipts $5 million or less) put away $2.5 million in trust fund
      taxes through an installment agreement. The balance due simply boggles
      the mind when balanced against other competing expenses and priorities
      of the business.

He also expressed skepticism about the company's projected financial results, which
he considered unfounded and inconsistent with Fifty Below's current failures to make
payments it had promised to make: "The P&L projections are pretty much
guesstimates. The fact that [taxpayer] proposed payments for the month of March and
April and both months have come and gone without payments doesn't help." The
administrative record abundantly substantiates that the appeals officer did in fact
consider Fifty Below's current ability to pay.

       Fifty Below further argues that the appeals officer failed to conduct the
statutorily prescribed balancing test, but the attachment to the Notice of Decision
shows that he did:


                                         -5-
      Balancing the need for efficient collection with the taxpayer conern that
      the collection action be no more intrusive than necessary.
      P-5-1 states that enforcement is a necessary component of a voluntary
      assessment system. Since you have been unable to get and remain
      current, the IRS has little choice but to pursue enforcement action to
      collect this account.

Fifty Below contends that the appeals officer did not take into account the possibility
of entering an installment agreement. This contention is patently contrary to the
record, which shows that the appeals officer thoroughly considered the installment
proposal, but rejected it because he thought history showed Fifty Below would not be
able to comply with its own proposal. There is no abuse of discretion of any kind
here, not to mention a showing of clear abuse of the taxpayer by the IRS. See
Robinette, 439 F.3d at 459.

      We affirm the judgments of the district court.
                      ______________________________




                                         -6-
