                              T.C. Memo. 2019-162



                        UNITED STATES TAX COURT



                   ERIC SCHWARTZ, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 17291-14L.                        Filed December 12, 2019.



      Karen J. Lapekas, for petitioner.1

      Derek P. Richman and Daniel C. Munce, for respondent.



            MEMORANDUM FINDINGS OF FACT AND OPINION


      VASQUEZ, Judge: In this collection due process (CDP) case, petitioner

seeks review pursuant to section 6330(d)(1) of the determinations by the Internal

Revenue Service (IRS or respondent) Appeals Office (Appeals) to sustain


      1
        Ms. Lapekas represented petitioner before the Tax Court, but she did not
represent him in the prior administrative proceedings.
                                         -2-

[*2] proposed levies with respect to petitioner’s Federal income tax liabilities for

2006, 2007, 2010, 2011, and 2012 (liabilities at issue).2 The issue before us is

whether petitioner made a timely informal refund claim pertaining to a prior year

overpayment sufficient to extinguish the liabilities at issue. For the below reasons,

we will remand this case to Appeals to clarify and supplement the administrative

record.

                               FINDINGS OF FACT

      Some of the facts have been stipulated and are so found. We incorporate

the stipulation of facts and the attached exhibits by this reference. Petitioner was a

resident of Florida when the petition in this case was filed.

Petitioner’s Divorce

      In 2006 petitioner was party to a divorce action before the Family Division

of the Circuit Court for Miami-Dade County, Florida (circuit court). The circuit

court directed petitioner and his ex-spouse to make an estimated Federal tax

payment of $150,000 to cover their expected 2005 Federal income tax liability.

Petitioner and his ex-spouse made the payment on or about April 17, 2006.3 They



      2
       Unless otherwise indicated, all section references are to the Internal
Revenue Code in effect at all relevant times.
      3
          The credit was later allocated $75,000 to each spouse.
                                          -3-

[*3] also filed a six-month extension request for their 2005 Federal income tax

return, causing it to be due October 16, 2006.4 However, petitioner did not file a

joint or separate return by the extended deadline.

      On September 17, 2007, the circuit court issued an order (September 2007

order) restricting petitioner’s use of the $150,000 payment. Petitioner interpreted

the September 2007 order as a bar to filing a Federal tax return until the divorce

was final and/or the order was lifted.5 Therefore, petitioner delayed filing income

tax returns.


      4
          April 15, 2006, fell on a Saturday; October 15, 2006, fell on a Sunday.
      5
          The order stated in relevant part:

             6.0 Neither party shall draw upon, utilize, or otherwise use the
      $150,000.00 currently held by the I.R.S. in the parties’ joint names.
      Any tax returns filed by either party for which payment is required to
      the I.R.S. shall be filed contemporaneously with payment for all sums
      due by the individual filing the return. Any portion of the
      $150,000.00 returned to either party shall be placed in the escrow
      account at Mellon Bank created pursuant to paragraph 1.0 above.
      These funds shall not be removed or distributed to either party absent
      a Court Order or written agreement of both parties.

               *       *        *        *       *        *       *

             8.0 Any other marital funds not specifically delineated above
      received by either party shall be placed in the escrow account at
      Mellon Bank created pursuant to paragraph 1.0 above. These funds
      shall not be removed or distributed to either party absent a Court
      Order or written agreement of both parties.
                                          -4-

[*4] On December 14, 2009, the circuit court issued an amended final judgment

of dissolution of marriage (December 2009 final judgment). Several postjudgment

motions followed.

      In October 2011, after the postjudgment motions were resolved, petitioner

filed his delinquent returns for 2005, 2006, 2007, 2008, 2009, and 2010. On his

2005 return petitioner reported total tax of $45,282 and an estimated payment of

$75,000. Accordingly, he claimed a refund of $29,718. On line 74 of the return

petitioner specified that he wanted to apply the entire amount of the claimed

refund against his 2006 estimated tax. On his 2006, 2007, and 2010 returns

petitioner reported tax liabilities.6 He did not submit payments with those returns

because his claimed refund for 2005 was sufficient to cover the reported liabilities.

      Respondent accepted petitioner’s 2005 return as filed, assessed the reported

liability, and credited the $75,000 payment against that liability. However, on

April 30, 2012, respondent disallowed petitioner’s claim for refund and transferred

the $29,718 overpayment for 2005 to an excess collections account. Respondent

did not issue petitioner a notice of disallowance pursuant to section 6532(a)(1).




      6
          Petitioner did not have tax liabilities for 2008 and 2009.
                                          -5-

[*5] On May 12, 2012, and July 11, 2013, respectively, petitioner timely filed his

returns for 2011 and 2012.7 Petitioner reported a tax liability for each year.

However, he did not submit payments with his returns.

      Respondent assessed the liabilities at issue. Having transferred petitioner’s

2005 overpayment to an excess collections account, respondent did not credit the

2005 overpayment against the liabilities at issue.

Collection Due Process Hearing

      Respondent issued a Notice of Intent to Levy and Notice of Your Right to a

Hearing (notice of intent to levy) with respect to petitioner’s 2006, 2007, 2010,

and 2011 tax years. Respondent later issued a separate notice of intent to levy

with respect to petitioner’s 2012 tax year. Petitioner timely requested a CDP

hearing in response to both notices.

      In his CDP hearing requests petitioner indicated he was seeking “Other”

relief and did not request any collection alternatives. In letters attached to his

CDP hearing requests, petitioner wrote:

      In December 2005 my former wife and I sold our marital residence.
      In March of 2006 * * * my wife filed for divorce and the court froze
      the marital assets. Per [circuit] court order, the party’s [sic] made an
      estimated tax liability payment to the IRS in the amount of
      $150,000.00 * * * and the parties were prevented from obtaining any

      7
          For those years, petitioner timely filed requests for extensions.
                                          -6-

[*6] refund of these funds without [circuit] court order. After the Final
     Judgment was rendered in December of 2009, there were several
     subsequent motions filed, including one to determine the distribution
     of the advanced tax liability payment as well as two appeals. By the
     time these proceedings were concluded and the funds were finally
     released from the [circuit] court’s jurisdiction, the three year time
     limit for the taxpayer to request a refund had expired, therefore
     preventing same. Based on the foregoing, but not limited thereto, I
     am respectfully asking that the IRS apply the applicable portion of the
     estimated tax payment to my 2006 Federal tax [re]turns forward as
     well as those in the future until the funds are utilized.

      Appeals consolidated petitioner’s CDP hearing requests and assigned

Settlement Officer (SO) Lynette Dallam to petitioner’s case. In a letter to

petitioner dated November 1, 2013, SO Dallam scheduled petitioner’s hearing for

December 10, 2013. Addressing petitioner’s request to apply the overpayment

against the liabilities at issue, the SO wrote:

      You indicated in your appeal request that you wish to have a portion
      of an estimated tax payment applied to your balance due. Based on
      the nature of your request, please submit the following information
      for review and analysis.

             *        *         *        *        *      *        *

      A copy of all court documents pertaining to the payment made, the
      responsible parties for payments and the divorce settlement.

SO Dallam also advised petitioner that, should he request a collection alternative,

he would need to provide her a financial statement and supporting documentation.
                                         -7-

[*7] On December 10, 2013, SO Dallam called petitioner for the scheduled

hearing. During the telephone hearing petitioner restated his contention that the

circuit court’s freezing of his assets prevented him from timely requesting a

refund. According to SO Dallam’s notes in respondent’s case activity record print,

petitioner requested “that it be looked into if he would be entitled to the refund.”

SO Dallam’s notes also indicate that she asked petitioner to send her “the court

documentation he stated he had and advised TP [petitioner] that upon receipt, 2

weeks, the information would be considered in the making of a decision.”8

      Two days later SO Dallam determined that petitioner was “disputing the

liability based on presumed timely filing because of outlying circumstances.”

With her manager’s approval, SO Dallam transferred petitioner’s case to another

unit within Appeals.

      Appeals assigned Appeals Officer (AO) Clayton Mansfield to review

petitioner’s request to credit the overpayment against the liabilities at issue. On

March 4, 2014, AO Mansfield and petitioner had a telephone conversation. AO

Mansfield’s notes of the conversation are as follows: “Discussed issue with TP




      8
         We infer from this entry that SO Dallam gave petitioner two additional
weeks to provide her the documents she had requested in her November 1, 2013,
letter. Petitioner timely complied with this request.
                                        -8-

[*8] [petitioner]. TP [petitioner] states he sent documents relating to divorce

proceeding to SO [Dallam] per her request.”

      AO Mansfield was unable to find the documents in petitioner’s case file.

On March 12, 2014, AO Mansfield followed up with petitioner by letter, writing:

      [W]e are requesting a copy of the [circuit court] order concerning the
      estimated tax payment for the above referenced tax year referenced in
      your letter * * *.

            If we don’t hear from you, Appeals must make its decision
      based on the information now in your case file. If you have any
      questions, please call the contact person at the phone number shown
      above.

             Please furnish the additional information by March 27, 2014.

      On March 21, 2014, petitioner faxed AO Mansfield copies of the September

2007 order and the December 2009 final judgment. After reviewing these

documents, AO Mansfield determined that Appeals could not credit the 2005

overpayment against the liabilities at issue because petitioner’s refund claim was

untimely. On March 27, 2014, AO Mansfield recorded the following notes:

“Called TP [petitioner] to advise him of liability determination”. The AO’s notes

indicate that he provided this information to petitioner by voicemail, and the

administrative record does not reveal any followup communications between AO

Mansfield and petitioner.
                                       -9-

[*9] Appeals transferred petitioner’s case back to SO Dallam. On April 23,

2014, SO Dallam and petitioner spoke by telephone. SO Dallam’s summary of the

telephone call is as follows:

      SO [Dallam] contacted TP [petitioner] to discuss next steps regarding
      CDP since AO [Mansfield] issued a determination. TP [petitioner]
      stated he did not feel he had the chance to present all evidence to the
      AO. SO [Dallam] attempted to explain the issue to * * * [petitioner]
      and why the decision was made. SO [Dallam] explained how a
      portion of the refund was allowed but the remainder was not
      transferred to other periods even though the returns were sent in at the
      same time. TP [petitioner] requested to speak to * * * [an Appeals]
      manager regarding case and to submit additional information. SO
      [Dallam] advised the outcome has been decided. TP [petitioner]
      stated it would make him feel better because as he interpreted the
      directions of the [circuit court] judge, he could not file his return
      unless he had a $45,000 check for the IRS. SO [Dallam] advised civil
      court has no jurisdiction over IRS requirements and that his
      interpretation may be wrong. SO requested * * * [petitioner’s]
      anticipated next step if the decision remains unfavorable so collection
      alternatives could be considered.

      According to SO Dallam’s notes, she spoke with an Appeals team manager

either during or soon after her phone call with petitioner. SO Dallam summarized

her conversation with the Appeals team manager as follows:

      ATM [Appeals team manager] reviewed, stated issue was timeliness
      and the IRC [Internal Revenue Code] is the final jurisdiction. TP
      [petitioner] may submit additional information but discussion as to
      the details of the case is not necessary. Information will be reviewed
      for timeliness.
                                        - 10 -

[*10] It is unclear from SO Dallam’s notes (and the administrative record in

general) whether she or anyone else at Appeals conveyed this invitation for

additional information to petitioner.

      On April 23, 2014, the same day as her telephone call with petitioner and

her discussion with an Appeals team manager, SO Dallam sent petitioner a letter,

writing:

      This letter is to inform you of the information required to resolve your
      balance due via installment agreement. You will need to provide the
      following:

      Form 433A
      3 months of your most recent bank statements
      3 months of your most recent pay statements
      1 month of expenses claimed on page 4 of the Form 433A

      This information must be received by May 12, 2014 in order for it to
      be considered.

      The decision letter from the Appeals Officer will be forwarded to you
      upon closure of your Collection Due Process case.

      The letter did not request documentation pertaining to the additional

information petitioner had asked Appeals to consider during the April 23, 2014,

telephone call. Nor did the letter warn petitioner of any negative consequences if

he failed to submit additional information before a certain date.
                                         - 11 -

[*11] On June 9, 2014, respondent issued notices of determination sustaining the

proposed levies. Attachments to the notices of determination state in relevant part:

        On 3/21/2014 the Appeals Officer reviewed the facts of your case and
        determined your [refund] request was not timely and therefore you are
        not entitled to the refund. The Settlement Officer advised you of this
        information. You stated you were not satisfied with the actions of the
        Appeals Officer and requested to speak to the manager. The
        Settlement Officer contacted the Appeals Officer’s manager. After
        review of the case, it was stated that your issue was timeliness and
        there was no additional issue to address. You were advised on
        4/23/2014 to submit additional information for consideration
        regarding the specifics you claim would sway the decision of the
        Appeals Officer. As of May 19, 2014, this information has not been
        received.

Trial

        After the issuance of the notices of determination, petitioner retained

counsel and timely petitioned this Court. Trial was held in Miami, Florida.

        At trial petitioner proffered a letter he wrote to the IRS dated March 28,

2008. According to petitioner, this letter and other communications with the IRS

constitute a timely informal claim for refund. Petitioner also proffered two letters

from the IRS dated May 7 and August 7, 2008, both of which acknowledge

correspondence “received” April 10, 2008. The May 7, 2008, letter advises

petitioner: “[W]e [the IRS] haven’t resolved this matter because we haven’t

completed all the research necessary for a complete response” and “[y]ou
                                         - 12 -

[*12] [petitioner] don’t need to do anything further now on this matter.” The

August 7, 2008, letter is substantially similar, advising petitioner: “[W]e have not

yet completed our research to resolve your inquiry.”

       Petitioner did not provide the March 28, May 7, and August 7, 2008, letters

to Appeals during his CDP hearing. Respondent objected to the admission of

these letters.9

                                      OPINION

I.     Collection Principles

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

rights of a taxpayer liable for tax if the taxpayer fails to pay the tax within 10 days

after notice and demand for payment is made. Section 6330(a) provides that no

levy may be made on any property or right to property of any person unless the

Secretary has notified such person in writing of the right to a hearing before the

levy is made.




       9
        At trial the Court reserved ruling on respondent’s objections to the
admission of Exhibits 37-P through 42-P, which include these documents.
Respondent contends that the exhibits were not provided to the SO or otherwise
made a part of the administrative record. We will continue to reserve ruling on the
admissibility of Exhibits 37-P through 42-P pending clarification of the
administrative record.
                                        - 13 -

[*13] If a taxpayer requests a hearing in response to a notice of levy pursuant to

section 6330, a hearing shall be held before an impartial officer or employee of

Appeals. Sec. 6330(b)(1), (3). At the hearing the taxpayer may raise any relevant

issue relating to the unpaid tax or the proposed levy, including appropriate spousal

defenses, challenges to the appropriateness of the collection action, and collection

alternatives. Sec. 6330(c)(2)(A). A taxpayer is precluded from contesting the

existence or amount of the underlying liability unless the taxpayer did not receive

a notice of deficiency for the liability in question or did not otherwise have an

opportunity to dispute the liability. Sec. 6330(c)(2)(B); see also Sego v.

Commissioner, 114 T.C. 604, 609 (2000).

      Following a hearing Appeals must determine whether proceeding with the

proposed levy action is appropriate. In making that determination Appeals is

required to take into consideration: (1) verification presented by the Secretary

during the hearing process that the requirements of applicable law and

administrative procedure have been met, (2) relevant issues raised by the taxpayer,

and (3) whether the proposed levy action appropriately balances the need for the

efficient collection of taxes with the taxpayer’s concerns regarding the

intrusiveness of the proposed collection action. Sec. 6330(c)(3).
                                        - 14 -

[*14] II.    Standard of Review

      Section 6330(d)(1) grants this Court jurisdiction to review Appeals’

determination in connection with a collection hearing. Where the validity of the

underlying tax liability is properly at issue, we review the taxpayer’s liability

de novo. See Sego v. Commissioner, 114 T.C. at 610; Goza v. Commissioner, 114

T.C. 176, 181-182 (2000). Where the underlying tax liability is not properly at

issue, we review the determination for abuse of discretion. Sego v. Commissioner,

114 T.C. at 610; Goza v. Commissioner, 114 T.C. at 182.

      The parties disagree as to whether petitioner’s underlying tax liabilities are

at issue and, consequently, the appropriate standard of review. Respondent argues

that petitioner’s prior year overpayment claim is an “issue relating to the unpaid

tax” under section 6330(c)(2)(A), for which the standard of review is abuse of

discretion. Petitioner contends that he is contesting “the existence or amount of

the underlying tax liability” under section 6330(c)(2)(B), for which the standard of

review is de novo.

      There is some uncertainty in our precedents as to whether a de novo or an

abuse-of-discretion standard of review applies in a situation such as this.10

      10
         In Landry v. Commissioner, 116 T.C. 60 (2001), we applied a de novo
standard of review where the taxpayer challenged the IRS’ failure to apply an
                                                                      (continued...)
                                        - 15 -

[*15] Because we find it necessary to remand this case to Appeals, we need not

resolve this uncertainty today.

III.   Analysis

       Before we can consider the merits of the informal refund claim issue under

either standard of review, we must determine whether petitioner raised the issue

during his CDP hearing.

       Generally, a taxpayer must raise an issue at a CDP hearing to preserve it for

review by this Court. Giamelli v. Commissioner, 129 T.C. 107, 115 (2007);

Perkins v. Commissioner, 129 T.C. 58, 63 (2007); Magana v. Commissioner, 118

T.C. 488, 493-494 (2002); Gentile v. Commissioner, T.C. Memo. 2013-175, at *6,

aff’d, 592 F. App’x 824 (11th Cir. 2014). Section 301.6330-1(f)(2), Q&A-F3,

Proced. & Admin. Regs., provides that a taxpayer who is seeking Tax Court

review of a determination of Appeals in a CDP case can “only ask the court to


       10
         (...continued)
overpayment credit from another year. We concluded that this was a challenge to
the taxpayer’s underlying tax liability, i.e., “the amount unpaid after application of
credits to which * * * [the taxpayer was] entitled”. Id. at 62. On the other hand,
we have applied abuse-of-discretion review when considering challenges to the
IRS’ application of a check or other tax payment. See Melasky v. Commissioner,
151 T.C. 89, 92 (2018) (holding that a dispute as to whether a payment was
properly credited to the taxpayer’s account for a particular tax year is not a
challenge to his underlying tax liability); see also Orian v. Commissioner, T.C.
Memo. 2010-234; Kovacevich v. Commissioner, T.C. Memo. 2009-160.
                                         - 16 -

[*16] consider an issue, including a challenge to the underlying tax liability, that

was properly raised in the taxpayer’s CDP hearing.” The regulation further states

that an “issue is not properly raised if the taxpayer fails to request consideration of

the issue * * * or if consideration is requested but the taxpayer fails to present to

Appeals any evidence with respect to that issue after being given a reasonable

opportunity to present such evidence.” Id.

      The parties agree that Appeals did not consider whether petitioner had made

a timely informal claim for refund. They disagree, however, as to whether

petitioner properly raised the issue during his CDP hearing.

      According to respondent, petitioner during his CDP hearing only argued

that: (1) the circuit court prevented him from timely seeking a refund and (2) in

accordance with his formal refund claim filed in 2011, respondent should apply

the overpayment against the liabilities at issue. Respondent contends that

petitioner never asked Appeals to consider his informal refund claim argument.

Respondent also contends that petitioner never provided Appeals with any facts or

information that would indicate that the issue existed. Objecting to these factual

premises, petitioner argues that the informal refund claim issue is properly before

us.
                                        - 17 -

[*17] In order to ascertain whether petitioner properly raised the informal refund

claim issue, we first consider his statements in the CDP requests. Therein

petitioner--who represented himself at the hearing--explained that he was unable

to file a timely formal request for refund because of his interpretation of the circuit

court order. After explaining the circumstances of his divorce, he wrote: “Based

on the foregoing, but not limited thereto, I am respectfully asking that the IRS

apply the applicable portion of the estimated tax payment to my 2006 Federal tax

[re]turns forward as well as those in the future until the funds are utilized.” We

understand the “but not limited thereto” phrase to mean that petitioner reserved the

right to make additional or alternative arguments for the application of the 2005

overpayment against the liabilities at issue. Construing petitioner’s request

liberally, we find it broad enough to include a request for consideration of the

informal refund claim issue.

      However, requesting consideration of an issue during a CDP hearing is not

enough to preserve the issue for judicial review. The taxpayer must also present

Appeals with “evidence with respect to that issue after being given a reasonable
                                       - 18 -

[*18] opportunity” to do so. Sec. 301.6330-1(f)(2), Q&A-F3, Proced. & Admin.

Regs. According to respondent, petitioner failed to clear this threshold hurdle.11

      The notices of determination tell the following story. After her first

telephone conversation with petitioner, SO Dallam forwarded petitioner’s case to

another unit within Appeals. In March 2014 AO Mansfield reviewed petitioner’s

information and determined that petitioner’s refund request was untimely.

Thereafter SO Dallam informed petitioner of AO Mansfield’s determination, about

which petitioner expressed dissatisfaction. On April 23, 2014, petitioner was

“advised * * * to submit additional information for consideration regarding the

specifics you claim would sway the decision of the Appeals Officer.” Petitioner

did not do so as of May 19, 2014, at which time Appeals determined to sustain the

collection action.

      This narrative is favorable to respondent. If we were to take it at face value,

it could establish that: (1) after informing petitioner of AO Mansfield’s

determination, Appeals gave petitioner several weeks to present evidence

      11
         There is no dispute that petitioner provided AO Mansfield with divorce-
related documents during the hearing. However, those documents relate to an
argument petitioner made independently of his informal refund claim argument.
We consider the informal refund claim issue an alternative argument that
petitioner was required to raise separately. See Crews v. Commissioner, T.C.
Memo. 2019-80, at *33-*34 (declining to consider an alternative argument that the
taxpayer did not make at his CDP hearing).
                                        - 19 -

[*19] supporting any additional or alternative arguments he might wish to make

and (2) petitioner failed to do so. However, the administrative record tells a

different story--one in which petitioner might not have had a chance to present

additional evidence.

      The administrative record reveals that AO Mansfield was the first person at

Appeals to consider the merits of petitioner’s request to apply the overpayment

against the liabilities at issue. Unfortunately, the administrative record does not

provide many details about the AO’s interactions with petitioner. For example,

AO Mansfield’s notes of a March 4, 2014, telephone call with petitioner state only

that they “[d]iscussed [the] issue”. As best we can tell from the sparse

administrative record, the only item AO Mansfield requested was a copy of the

September 2007 order. After petitioner timely provided copies of the September

2007 order and the December 2009 final judgment, AO Mansfield reviewed those

documents and determined that petitioner’s formal refund claim was untimely. He

apparently informed petitioner of his determination by leaving a voicemail. It is

unclear whether petitioner had an opportunity to follow up with the AO about the

determination or otherwise raise additional issues or arguments.

      Appeals promptly transferred petitioner’s case back to SO Dallam.

Respondent’s case activity record print contains an entry from the SO dated
                                       - 20 -

[*20] April 23, 2014, summarizing a telephone call she conducted with petitioner

on that date. According to SO Dallam’s notes, petitioner “stated he did not feel he

had the chance to present all evidence” to AO Mansfield and asked to submit

additional information and speak to an Appeals manager. In response SO Dallam

advised petitioner that “the outcome has been decided” before changing the topic

to collection alternatives.

      Given that AO Mansfield apparently informed petitioner of his decision by

voicemail, the April 23, 2014, telephone conversation may have been petitioner’s

first opportunity to discuss additional or alternative arguments with an Appeals

representative. By telling petitioner the “outcome” was “decided” before he had a

chance to advance any additional or alternative arguments, SO Dallam may have

summarily dismissed petitioner’s informal refund claim argument without fully

considering it. While we cannot so find because of gaps in the administrative

record, we have found similar actions to be abuses of discretion. See Szekely v.

Commissioner, T.C. Memo. 2013-227 (finding abuse of discretion where SO

failed to give taxpayer ample time to provide information); Blosser v.

Commissioner, T.C. Memo. 2007-323 (finding abuse of discretion where SO

failed to consider taxpayer’s statements during telephone hearing).
                                        - 21 -

[*21] Further complicating matters is the lack of clarity in the administrative

record about the identity of the person who, on April 23, 2014, purportedly

advised petitioner to submit additional information to Appeals. Because SO

Dallam told petitioner that the “outcome” was “decided”, we doubt she requested

additional information from petitioner on that date. Our doubts find further

support in SO Dallam’s followup letter to petitioner. Therein SO Dallam

requested various documents “required to resolve your balance due via installment

agreement.” The letter did not request documentation pertaining to the additional

information petitioner had asked Appeals to consider during the April 23, 2014,

telephone call.12

      That said, SO Dallam’s notes from April 23, 2014, also indicate that she

spoke with an Appeals team manager either during or immediately after her

telephone conversation with petitioner. According to SO Dallam’s notes, the

Appeals team manager told her that petitioner could “submit additional

information but discussion as to the details of the case is not necessary.” It is

      12
          The letter’s only reference to AO Mansfield’s determination is the
following sentence, which cryptically states: “The decision letter from the
Appeals Officer will be forwarded to you upon closure of your Collection Due
Process case.” It is unclear what “decision letter from the Appeals Officer” means
in this context. However, a reader could reasonably infer from this sentence that,
as of the date of the letter, AO Mansfield’s decision was final. We also note that
there is no “decision letter” from AO Mansfield in the administrative record.
                                       - 22 -

[*22] possible that the Appeals team manager joined the April 23, 2014, telephone

call and orally conveyed this invitation to petitioner. However, we are unable to

conclude from SO Dallam’s vague notes that such a conversation happened.

      In any event SO Dallam’s notes reflect a radically different conversation

with petitioner on April 23, 2014, from that portrayed in the notices of

determination. The notices themselves are confusing, stating: “[Y]ou [petitioner]

were advised on 4/23/2014 to submit additional information for consideration

regarding the specifics you claim”. By relying on the passive voice here,

respondent deprives us of any clue as to who so advised petitioner. Without more

information about this purported dialogue, the administrative record is insufficient

for the Court to determine whether petitioner properly raised the informal refund

claim issue.

      In such situations we can remand CDP cases to Appeals to develop the

record. See Wadleigh v. Commissioner, 134 T.C. 280, 299 (2010) (remanding “to

clarify and supplement the administrative record” when we determined that the

administrative record was “insufficient to enable us to properly evaluate whether

the Appeals Office abused its discretion”); Hoyle v. Commissioner, 131 T.C. 197,

204-205 (2008) (remanding so that Appeals could clarify the record as to why it

determined that all requirements of applicable law were met), supplemented by
                                           - 23 -

[*23] 136 T.C. 463 (2011). Accordingly, we will remand this case for Appeals to

clarify the record as to the evidence (if any) on which Appeals relies to conclude

that petitioner was advised on April 23, 2014, to submit additional information

regarding the specifics of his refund claim. If Appeals is unable to conclude that

petitioner was so advised, Appeals shall consider any additional information or

evidence that petitioner may wish to submit.

         We will retain jurisdiction to preserve petitioner’s right to judicial review of

the administrative determination. See Wadleigh v. Commissioner, 134 T.C. at

299. We have considered all the parties’ arguments and, to the extent not

addressed herein, we conclude that they are moot, premature, irrelevant, or without

merit.

         To reflect the foregoing,


                                                    An appropriate order will be issued.
