                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-20-2008

DiCindio v. Comm IRS
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3476




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Recommended Citation
"DiCindio v. Comm IRS" (2008). 2008 Decisions. Paper 1567.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1567


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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 07-3476
                                       ___________

                      WILLIAM J. DICINDIO; LOIS J. DICINDIO,

                                             Appellants


                                              v.

                     COMMISSIONER OF INTERNAL REVENUE

                       ____________________________________

                      On Appeal from the United States Tax Court
                              (Tax Court No. 7029-03L)
                      Tax Court Judge: Honorable John O. Colvin
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  February 11, 2008

                Before: AMBRO, FUENTES and FISHER, Circuit Judges

                            (Opinion filed February 20, 2008 )
                                      ___________

                                        OPINION
                                       ___________

PER CURIAM

       William and Lois DiCindio appeal the Tax Court’s decision allowing the appellee

to proceed with a collection action. The procedural history of this case and the details of
the DiCindios’ claims are well known to the parties, set forth in the Tax Court’s thorough

opinion, and need not be discussed at length. Briefly, the DiCindios filed a petition in the

Tax Court challenging a notice of determination with respect to fourteen years of unpaid

tax liabilities. The DiCindios did not challenge the amount of the taxes that they owe.

During the Tax Court proceedings, appellee agreed to evaluate an offer in compromise

from the DiCindios. The offer was returned to the DiCindios because they failed to

provide the information needed to evaluate the offer. They had also not shown that they

had paid estimated income tax for 2005 and 2006. The Tax Court upheld the notice of

determination. The DiCindios filed a timely notice of appeal, and we have jurisdiction

under 26 U.S.C. § 7482(a)(1).

       On appeal, the DiCindios argue that the Tax Court erred by not directing appellee

to request and evaluate two offers in compromise. However, the offer specialist who

evaluated the offer noted that she was overlooking the absence of two offers and other

processing deficiencies because the offer had been submitted by order of the Tax Court.

Moreover, the offer was rejected because the DiCindios failed to provide the necessary

information to evaluate the offer, not because there were not two separate offers.

       The DiCindios further argue that the appellee will not process an offer in

compromise unless the taxpayers are current with their estimated taxes. Therefore, they

contend that the Tax Court erred by denying their request to stay the case and their motion

for a reconsideration because they had filed a request for an extension of time to pay their

taxes. However, by filing a Form 4868, a taxpayer can only request an extension of time
to file a return; filing the form does not entitle one to an extension of time to pay the taxes

owed. See Deaton v. Commissioner, 440 F.3d 223, 224 (5th Cir. 2006). The DiCindios

were given several opportunities and extensions of time to file their completed offer in

compromise. Their arguments are without merit.

       The DiCindios’ final argument is that the appellee closed the file on their offer in

compromise while their motion for reconsideration was still pending before the Tax

Court. We agree with the Tax Court that this was not an abuse of discretion.

       Appellee notes that a final notice of intent to levy was not sent for the tax years of

1988 and 2001 and that the Tax Court lacked jurisdiction over those years. Appellee

requests that the case be remanded to the Tax Court for removal of those years from the

decision. Accordingly, we will vacate the Tax Court decision in part and remand the

matter with instructions to correct the decision to remove the tax years 1988 and 2001. In

all other respects, we will affirm the decision of the Tax Court for the above reasons as

well as those set forth by the Tax Court.
