                         T.C. Summary Opinion 2020-21



                        UNITED STATES TAX COURT



             CONGREGATION BAIS YAAKOV, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 20188-18S L.                          Filed July 22, 2020.



      Yitzchok Kaplan (an officer), for petitioner.1

      Brian E. Peterson and Monica E. Koch, for respondent.



                              SUMMARY OPINION


      GUY, Special Trial Judge: This collection review case was heard pursuant

to the provisions of section 7463 of the Internal Revenue Code in effect when the



      1
        Lawrence A. Sannicandro entered a limited appearance as pro bono counsel
for petitioner when this case was called for hearing in New York, New York. The
Court appreciates Mr. Sannicandro’s assistance.
                                        -2-

petition was filed.2 Pursuant to section 7463(b), the decision to be entered is not

reviewable by any other court, and this opinion shall not be treated as precedent

for any other case.

      The Internal Revenue Service (IRS) Office of Appeals (Appeals Office)3

issued a notice of determination to Congregation Bais Yaakov sustaining a

proposed levy action to collect unpaid Federal employment tax and related

assessments for the taxable period ending March 31, 2016. Petitioner invoked the

Court’s jurisdiction by filing a timely petition for review under section 6330(d).4

      This matter is before the Court on respondent’s motion for summary

judgment, with supporting declarations, filed pursuant to Rule 121. Petitioner

filed a response opposing respondent’s motion, to which respondent filed a reply

and supplements thereto. As discussed in detail below, the Court will grant

respondent’s motion and enter a decision sustaining the collection action.


      2
        Unless otherwise indicated, section references are to the Internal Revenue
Code of 1986, as amended and in effect at all relevant times. All Rule references
are to the Tax Court Rules of Practice and Procedure. Dollar amounts are rounded
to the nearest dollar.
      3
       This office is now named the “Independent Office of Appeals”. See sec.
6330(b)(1) (as amended by the Taxpayer First Act, Pub. L. No. 116-25, sec. 1001,
133 Stat. at 983 (2019)).
      4
     When the petition was filed, petitioner’s principal place of business was in
New York.
                                        -3-

                                    Background5

I. Petitioner’s Employment Tax Returns and Requests for Abatement

      Petitioner is a corporation that is exempt from Federal income tax under

section 501(c)(3). Yitzchok Kaplan is petitioner’s president and administrator.

      Generally speaking, petitioner timely files Forms 941, Employer’s Quarterly

Federal Tax Return, and timely pays its Federal employment tax liabilities. On

occasion, however, petitioner has filed Form 941 late and remitted Federal

employment tax deposits after the due date. For some taxable periods the IRS

issued refunds to petitioner in respect of its Federal employment tax

overpayments, and for other periods petitioner requested that the IRS apply its

overpayments to satisfy its Federal employment tax liabilities for other taxable

periods--a so-called credit elect overpayment.

      Against this backdrop, over several taxable periods the IRS assessed

additions to tax for late filing and late payment under section 6651(a)(1) and (2),

respectively, and Federal tax deposit penalties under section 6656. The IRS

collected these additions to tax and penalties by applying portions of petitioner’s

employment tax deposits that otherwise would have resulted in overpayments.

      5
       The following background facts, which are drawn from the pleadings,
respondent’s motion, petitioner’s response, respondent’s reply, and related
exhibits, are not in dispute.
                                        -4-

      In December 2012 Mr. Kaplan sent a letter to the IRS requesting that

additions to tax and penalties assessed for quarterly periods ending March 31,

2005, and June 30, 2007, be abated. In June 2013 Mr. Kaplan sent a followup

letter to the IRS inquiring about the status of the above-referenced request for

abatement. At some date not reflected in the record Mr. Kaplan also requested

that the IRS abate additions to tax and penalties assessed for quarterly periods

ending September 30 and December 31, 2010.

      IRS records indicate that petitioner’s abatement requests for the quarterly

periods mentioned above were denied in 2014. Petitioner has no record of a

written notice from the IRS denying its abatement requests.

II. Petitioner’s Employment Tax Liability in Dispute

      On August 22, 2016, petitioner filed Form 941 for the quarterly period

ending March 31, 2016 (period in issue), reporting tax due of $64,839. The IRS

credited petitioner with advance tax deposits of $54,462 and a modest credit elect

overpayment, leaving an unpaid balance of $10,377. The IRS subsequently

assessed an addition to tax for late payment under section 6651(a)(2), a Federal tax

deposit penalty under section 6656, and interest. The IRS issued a notice and

demand for payment to petitioner.
                                        -5-

      On November 21, 2017, respondent issued a notice of intent to levy to

petitioner regarding its unpaid employment tax and related assessments for the

period in issue. Mr. Kaplan timely requested an administrative hearing with the

Appeals Office.

      The Appeals Office initially reviewed petitioner’s account transcript for the

period in issue with Mr. Kaplan and granted his request for additional time to

determine whether all tax payments had been properly taken into account. Mr.

Kaplan subsequently informed the Appeals Office that, although petitioner’s

deposits for the period in issue were properly accounted for, he believed that the

IRS had erroneously assessed additions to tax, penalties, and interest for earlier

taxable periods. Mr. Kaplan posited that if the above-referenced assessments were

abated, petitioner would have sufficient credit elect overpayments to offset the

balance of employment tax due for the period in issue. In the alternative Mr.

Kaplan suggested that petitioner could pay any outstanding employment tax in

monthly installments of $265.

      The Appeals Office determined that all payments, credits, and refunds for

earlier taxable periods had been taken into account, informed Mr. Kaplan that it

lacked the authority to consider petitioner’s requests for abatement relating to

taxable periods other than the period in issue, recommended that petitioner submit
                                          -6-

Forms 843, Claim for Refund and Request for Abatement, to the IRS in respect of

those claims, and requested that petitioner submit financial information to permit

the Appeals Office to evaluate its eligibility for an installment plan. When

petitioner failed to provide any additional information, the Appeals Office issued

the notice of determination in dispute.

                                     Discussion

      Summary judgment is intended to expedite litigation and avoid unnecessary

and expensive trials. Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988).

Either party may move for summary judgment upon all or any part of the legal

issues in controversy. Rule 121(a). Summary judgment is warranted only if the

moving party shows that there is no genuine dispute as to any material fact and

that he is entitled to judgment as a matter of law. Rule 121(b); Naftel v.

Commissioner, 85 T.C. 527, 529 (1985). In deciding whether to grant summary

judgment the factual materials and inferences drawn from them must be

considered in the light most favorable to the nonmoving party. FPL Grp., Inc. &

Subs. v. Commissioner, 115 T.C. 554, 559 (2000). Where a motion for summary

judgment is properly supported, however, the nonmoving party must set forth

specific facts showing that there is a genuine dispute for trial. Rule 121(d).
                                         -7-

         Respondent’s motion for summary judgment is well founded. Although

petitioner filed a response in opposition to respondent’s motion, it has not

identified any material fact that remains in dispute or presented a genuine issue for

trial.

         Section 6331(a) authorizes the Commissioner to levy upon property and

property rights of a person liable for taxes who fails to pay those taxes within 10

days after notice and demand for payment.6 Section 6331(d) provides that the levy

authorized by section 6331(a) may be made with respect to any unpaid tax only

after the Commissioner has notified the person in writing of his intention to make

the levy at least 30 days before any levy action is begun.

         Section 6330 provides procedures for administrative and judicial review of

the Commissioner’s levy actions. Any person receiving a notice of proposed levy

may request an administrative hearing with the Appeals Office. The Appeals

Office in turn is obliged to verify that the requirements of any applicable law or

administrative procedure have been meet. Sec. 6330(c)(1), (3)(A). The person

may raise at the administrative hearing any relevant issue relating to the unpaid tax

or the collection action, including challenges to the appropriateness of the


         6
       The applicable definition of the term “person” includes a corporation. See
sec. 7701(a)(1).
                                         -8-

collection action and offers of collection alternatives. Sec. 6330(c)(2)(A), (3)(B).

The person may also raise at the hearing challenges to the existence or amount of

the underlying liability if the person did not receive a statutory notice of

deficiency for such tax liability or did not otherwise have an opportunity to dispute

such liability. Sec. 6330(c)(2)(B). Finally, the Appeals Office must consider

whether the collection action balances the need for efficient collection against the

person’s concern that collection be no more intrusive than necessary. Sec.

6330(c)(3)(C).

      Section 6330(d) vests the Court with jurisdiction to review administrative

determinations in collection actions. Where the underlying tax liability is properly

at issue, we apply a de novo standard of review. Goza v. Commissioner, 114 T.C.

176, 181-182 (2000). We review issues that do not relate to the underlying tax

liability for abuse of discretion. Id. at 182. An abuse of discretion occurs if the

Appeals Office exercises its discretion “arbitrarily, capriciously, or without sound

basis in fact or law.” Woodral v. Commissioner, 112 T.C. 19, 23 (1999).

      Respondent seeks to collect the unpaid balance of employment tax that

petitioner reported on Form 941 for the period in issue, an addition to tax and a
                                         -9-

penalty assessed under sections 6651(a)(2)7 and 6656,8 respectively, and interest.

Petitioner does not challenge the amount of employment tax that it reported for the

period in issue, nor does it take direct issue with the addition to tax, penalty, and

interest that respondent assessed for the period in issue. Petitioner instead

contends that the Appeals Office erred in failing to recognize that it is entitled to

claimed credit elect overpayments that would fully offset the balance of

employment tax due for the period in issue, which in turn would negate the

addition to tax, penalty, and interest that respondent assessed.

      Where a taxpayer overpays its tax, the IRS is vested with discretion to credit

that overpayment to another liability. Sec. 6402(a). As we explained in Weber v.

Commissioner, 138 T.C. 348, 371-372 (2012):

             An overpayment of a * * * [tax liability] that has been
      determined by the IRS or a court but has not been either refunded or
      applied to another liability may be an “available credit” that * * *
      could be taken into account in a CDP hearing to determine whether
      the tax at issue remains “unpaid” and whether the IRS can proceed
      with collection. But a mere claim of an overpayment is not an
      “available credit” but is instead a claim for a credit; and such a claim


      7
       Where a taxpayer fails to timely pay tax shown on a return, including Form
941, sec. 6651(a)(2) imposes an addition to tax equal to 0.5% of the amount
shown as tax for each month the failure continues, not to exceed 25% in the
aggregate.
      8
       Where a taxpayer fails to make a Federal tax deposit by the date prescribed,
sec. 6656 imposes a penalty of up to 15% of the undeposited amount.
                                        - 10 -

      need not be resolved before the IRS can proceed with collection of
      the liability at issue. * * *

      The record reflects that neither the IRS nor any court has determined that

petitioner is credited with an overpayment that is available to be applied to offset

the unpaid balance of employment tax due for the period in issue. Although

petitioner maintains that additions to tax and penalties assessed for earlier taxable

periods should be abated, those matters remain unresolved and do not fall within

the Court’s jurisdiction in this case. See, e.g., Murphy v. Commissioner, T.C.

Memo. 2019-72, at *8-*9. In the context of this action, there is no support for

petitioner’s credit elect overpayment claim.

      The record reflects that petitioner failed to make adequate employment tax

deposits for the period in issue. Although Mr. Kaplan suggested that petitioner

was interested in entering into an installment agreement, he failed to provide the

financial information that the Appeals Office needed to evaluate petitioner’s

eligibility for an alternative to the proposed levy action. See Pough v.

Commissioner, 135 T.C. 344, 351 (2010).

      The Court has authority to review the Appeals Office’s satisfaction of the

verification requirement regardless of whether the taxpayer raised that issue at the

administrative hearing. See Hoyle v. Commissioner, 131 T.C. 197, 200-203
                                       - 11 -

(2008), supplemented by 136 T.C. 463 (2011). Petitioner has not asserted at any

stage of these proceedings, however, that respondent failed to meet the

requirements of any applicable law or administrative procedure governing the

assessments entered for the period in issue. That issue is therefore deemed

conceded. See Rule 331(b)(4) (“Any issue not raised in the assignments of error

shall be deemed to be conceded.”); Triola v. Commissioner, T.C. Memo. 2014-

166, at *9.

      We conclude that there is no genuine dispute as to any material fact, the

Appeals Office did not abuse its discretion, and respondent is entitled as a matter

of law to entry of decision sustaining the proposed levy action.

      To reflect the foregoing,


                                                An appropriate order and decision

                                       will be entered.
