                                                   BRUCE M. KRAFT, PETITIONER v. COMMISSIONER                               OF
                                                          INTERNAL REVENUE, RESPONDENT
                                                       Docket No. 3602–12L.                       Filed April 23, 2014.

                                                      P filed a petition for review pursuant to I.R.C. sec. 6330 in
                                                   response to R’s determination to proceed with collection by
                                                   means of levy. P sought a collection alternative and requested
                                                   that R invade Trust (T) in order to satisfy P’s income tax
                                                   liability. P contends that for R to collect from him personally
                                                   the levy would have to be continuing for some time, resulting
                                                   in additional interest and costs. P contends that in order for
                                                   R to meet the standard of ‘‘no more intrusive than necessary’’
                                                   R is required to collect involuntary payments from T in the
                                                   manner P suggests. Held: It was not an abuse of discretion for
                                                   R to determine to proceed with a levy in lieu of or in addition
                                                   to an attempt to invade T in order to satisfy P’s income tax
                                                   liability. Held, further, R is not required to grant P’s request
                                                   to collect involuntary payments from a certain source.

                                           Bruce M. Kraft, pro se.
                                           Whitney N. Moore, for respondent.

                                                                                   OPINION

                                       WHERRY, Judge: Petitioner filed a petition seeking review
                                     of a Notice of Determination Concerning Collection Action
                                     Under Section 6330 (notice of determination) with respect to
                                     his self-reported unpaid 2009 Federal income tax liability. 1
                                           1 All   section references unless otherwise noted are to the Internal Rev-
                                                                                                       Continued


                                                                                                                                   259




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                                     260                 142 UNITED STATES TAX COURT REPORTS                                     (259)


                                     This case was scheduled to be tried during the trial session
                                     in Los Angeles, California, beginning on December 9, 2013,
                                     but was continued to permit a hearing on and resolution of
                                     respondent’s motion for summary judgment filed on October
                                     21, 2013. Petitioner was directed to file any response to
                                     respondent’s motion on or before November 18, 2013. On
                                     November 18, 2013, petitioner sent his response to the
                                     motion for summary judgment to the Court, and it was filed
                                     on November 20, 2013. A hearing on this motion was held in
                                     Los Angeles, California, where both parties were present on
                                     December 9, 2013. This Court subsequently requested the
                                     parties to file briefs discussing whether (in the light of peti-
                                     tioner’s assertion that his personal liquid assets are insuffi-
                                     cient to satisfy his Federal income tax liability and a con-
                                     tinuing or multiple levies would be required) respondent may
                                     be required by petitioner to invade the spendthrift Bruce
                                     Kraft Discretionary Trust UTD 1999 (Kraft Trust) in order
                                     to satisfy petitioner’s income tax liability. The parties sub-
                                     mitted their briefs by February 10, 2014. At the time the
                                     petition in this case was filed, petitioner resided in Wash-
                                     ington, D.C.

                                                                               Background
                                        Petitioner requested and received an extension of time to
                                     file his 2009 Federal income tax return to October 15, 2010,
                                     but he did not file his 2009 Form 1040, U.S. Individual
                                     Income Tax Return, until December 28, 2010. On his 2009
                                     Form 1040, petitioner reported his tax liability of $141,045.
                                     Petitioner had no withholding but made a payment of
                                     $10,000 at the time of filing. Subsequently, as of March 14,
                                     2011, petitioner had paid an additional $70,500, but the
                                     unpaid liability has also increased as result of an unpaid
                                     addition to tax and/or a penalty and interest.
                                        On February 7, 2011, respondent assessed petitioner’s self-
                                     reported tax liability of $141,045, as well as an addition to
                                     tax and interest. On May 24, 2011, respondent issued a
                                     Letter 1058, Final Notice of Intent to Levy and Notice of
                                     Your Right to a Hearing, for the 2009 taxable year. The final
                                     enue 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 as amend-
                                     ed.




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                                     (259)                           KRAFT v. COMMISSIONER                                        261


                                     notice reflected a balance due, as of June 23, 2011, of
                                     $144,182, 2 plus accrued interest of $2,006, and a late-pay-
                                     ment addition to tax of $3,937 for a total of $150,125. On
                                     June 16, 2011, petitioner timely submitted a Form 12153,
                                     Request for a Collection Due Process or Equivalent Hearing.
                                     In the Form 12153 petitioner checked the box indicating that
                                     he disputed respondent’s proposed or actual levy. Petitioner
                                     also indicated in the Form 12153 that he wanted to discuss
                                     an installment agreement as a collection alternative for his
                                     2009, 2010, and 2011 tax liabilities. Petitioner attached a
                                     four-page document to his Form 12153. In the attachment
                                     petitioner requested that respondent levy on a specific
                                     source, a property at 1220 Wisconsin Ave, N.W., Washington,
                                     D.C., or other Kraft Trust-owned assets, rather than his dis-
                                     tribution of income from the Kraft Trust and another trust
                                     of which he is a beneficiary. Petitioner also indicated that he
                                     preferred that respondent levy on this source instead of
                                     approving an installment payment plan. Petitioner did not
                                     raise any other issues in his Form 12153.
                                        In a letter dated October 12, 2011, respondent notified
                                     petitioner that he had received petitioner’s Forms 12153 for
                                     his 2010 and 2011 tax years. Respondent informed petitioner
                                     that as of November 11, 2011, petitioner’s total tax balance
                                     due was $212,390. Respondent also informed petitioner that
                                     the Internal Revenue Service (IRS) ‘‘will continue to charge
                                     penalties and interest until’’ petitioner pays the amount
                                     owed in full. Respondent noted that a Final Notice of Intent
                                     to Levy and Notice of your Right to a Hearing had not been
                                     issued for the 2010 and 2011 tax years and therefore peti-
                                     tioner did not have a right to a collection due process (CDP)
                                     hearing for those tax years. Respondent also included with
                                     the letter Publication 1660, Collection Appeal Rights.
                                        In a letter dated November 14, 2011, Settlement Officer
                                     Eva Holsey scheduled a telephone conference for December
                                     20, 2011, relating to the 2009 calendar tax year. A copy of
                                     IRS publication 4165, An Introduction to Collection Due
                                     Process Hearings, which outlines a taxpayer’s appeal rights
                                     and the Appeals process, was enclosed with the letter. Ms.
                                     Holsey was the hearing officer assigned to petitioner’s CDP
                                       2 All dollar amounts are rounded to the nearest dollar unless otherwise

                                     specified.




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                                     262                 142 UNITED STATES TAX COURT REPORTS                                     (259)


                                     hearing. In that letter Ms. Holsey also stated that in order
                                     for petitioner to be offered a face-to-face conference or an
                                     installment agreement he would need to provide a completed
                                     Form 433–A, Collection Information Statement for Wage
                                     Earners and Self-Employed Individuals. Ms. Holsey advised
                                     that no collection alternative would be considered unless
                                     petitioner filed all Federal tax returns required to be filed
                                     and was current on his estimated tax payments for the
                                     periods ending March 31, June 30, and September 30, 2011.
                                     In a letter to Ms. Holsey dated November 21, 2011, petitioner
                                     acknowledged receiving the letter. Included with petitioner’s
                                     letter was a check for $3,000 earmarked for his 2009 tax
                                     liability.
                                        Petitioner failed to provide the financial information
                                     requested in the November 14 letter by the deadline of
                                     November 28, 2011. Ms. Holsey received a faxed letter and
                                     a Form 2848, Power of Attorney and Declaration of Rep-
                                     resentative, appointing Kenneth A. Burns as petitioner’s
                                     counsel for tax years 2009 through 2011. The faxed document
                                     also indicated that petitioner’s counsel was not available on
                                     December 20, 2011, and requested that the date be changed
                                     to either sometime during December 27 through December
                                     30, 2011, or during the first two weeks of January 2012. On
                                     December 1, 2011, Ms. Holsey called petitioner’s counsel and
                                     informed him that respondent did not yet plan to levy with
                                     respect to the collection of petitioner’s unpaid tax liabilities
                                     for his 2010 and 2011 tax years.
                                        On December 11, 2011, a Form 2848 was provided to Ms.
                                     Holsey appointing William D. Hartsock and Sherry L.
                                     McDonald as Mr. Kraft’s representatives. On December 20,
                                     2011, Mr. Hartsock on behalf of petitioner faxed re-
                                     spondent requested financial information in the form of a
                                     Form 433–A. Included with the Form 433–A was a statement
                                     from Mr. Hartsock indicating that petitioner is the grantor
                                     and beneficiary of the Kraft Trust. The Kraft Trust was an
                                     irrevocable trust set up by petitioner that allows the trustee
                                     to distribute net income and principal as the trustee deems
                                     ‘‘necessary and appropriate for beneficiary’s health, mainte-
                                     nance, support, and education.’’ The Kraft Trust agreement
                                     specified that its ‘‘validity, construction, and administration
                                     * * * shall be determined by reference to the laws of the
                                     District of Columbia.’’ Later, on December 20, 2011, Mr.




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                                     (259)                           KRAFT v. COMMISSIONER                                        263


                                     Hartsock called Ms. Holsey for the CDP hearing and
                                     requested that she levy on the Kraft Trust but that the
                                     collection process be delayed until the levy to collect the 2010
                                     and 2011 tax liabilities. Petitioner did not raise the issue of
                                     his underlying tax liability during the CDP hearing.
                                       Ms. Holsey sustained the proposed levy action because she
                                     determined that the proposed levy was appropriate and no
                                     more intrusive than necessary. Appeals Team Manager
                                     Dwight Bates sent to petitioner a notice of determination for
                                     his 2009 tax year dated January 11, 2012, indicating that the
                                     Appeals Office would not grant relief under section 6330
                                     from the proposed levy action.
                                       On February 7, 2012, petitioner filed his petition with the
                                     Court for review of the CDP determination, stating inter alia
                                     that:
                                       (1) the IRS erred in not granting the relief requested; 3
                                       (2) the Commissioner erred in not considering the 2010
                                     and 2011 tax years; and
                                       (3) the Commissioner erred in ‘‘stating in their letter’’ that
                                     petitioner wanted an installment agreement.

                                                                                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). A party moving for
                                     summary judgment bears the burden of demonstrating that
                                     no genuine dispute of material fact exists and that he or she
                                     is entitled to judgment as a matter of law. Rule 121(b);
                                     Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992),
                                     aff ’d, 17 F.3d 965 (7th Cir. 1994). Facts are viewed in the
                                     light most favorable to the nonmoving party. Dahlstrom v.
                                     Commissioner, 85 T.C. 812, 821 (1985). Where a motion for
                                     summary judgment has been properly made and supported
                                     by the moving party, the nonmoving party ‘‘may not rest
                                     upon the mere allegations or denials’’ contained in that
                                     party’s pleadings but must by affidavits, declarations, or
                                           3 There
                                                is no indication in the record that petitioner requested anything
                                     different in the CDP hearing, as his chief concern was having levies for
                                     his 2009, 2010, and 2011 tax year liabilities imposed together and the total
                                     due collected from the Kraft Trust.




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                                     264                 142 UNITED STATES TAX COURT REPORTS                                     (259)


                                     otherwise ‘‘set forth specific facts showing that there is a
                                     genuine dispute for trial.’’ Rule 121(d).
                                        Section 6331(a) authorizes the Commissioner to levy upon
                                     property or property rights of a taxpayer liable for taxes who
                                     fails to pay those taxes within 10 days after notice and
                                     demand for payment. Section 6331(d) provides that the levy
                                     authorized in section 6331(a) may be made with respect to
                                     unpaid tax liability only if the Commissioner has given writ-
                                     ten notice to the taxpayer 30 days before the levy. Section
                                     6330(a) requires that the Commissioner send a written notice
                                     to inform the taxpayer of the amount of the unpaid tax and
                                     of the taxpayer’s right to request a section 6330 hearing
                                     during that 30-day period.
                                        If an administrative hearing is requested in a levy case,
                                     the hearing is to be conducted by the Appeals Office. Sec.
                                     6330(b)(1). At the hearing, the Appeals officer conducting it
                                     must verify that the requirements of any applicable law or
                                     administrative procedure have been met. Sec. 6330(c)(1).
                                     Taxpayers are expected to provide all relevant information
                                     requested by Appeals, including financial statements, to
                                     enable it to consider the facts and issues involved in the
                                     hearing. Sec. 301.6330–1(e)(1), Proced. & Admin. Regs.
                                        If a taxpayer’s underlying tax liability is properly at issue,
                                     the Court reviews any determination regarding the under-
                                     lying liability de novo. Sego v. Commissioner, 114 T.C. 604,
                                     610 (2000); Goza v. Commissioner, 114 T.C. 176, 181–182
                                     (2000). We review other administrative determinations
                                     regarding the proposed collection action for abuse of discre-
                                     tion. Goza v. Commissioner, 114 T.C. at 182.
                                        Following the hearing the Appeals officer must determine
                                     whether the proposed collection action should proceed. In
                                     making the determination the Appeals officer shall take into
                                     consideration: (1) whether the requirements of any applicable
                                     law or administrative procedure have been satisfied; (2) any
                                     relevant issues raised by the taxpayer during the section
                                     6330 hearing; and (3) whether the proposed collection action
                                     balances the need for efficient collection of taxes with the
                                     taxpayer’s legitimate concern that any collection action be no
                                     more intrusive than necessary. Sec. 6330(c)(3).




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                                     (259)                           KRAFT v. COMMISSIONER                                        265


                                     2009 Tax Year
                                        The tax liability for the 2009 tax year was self-reported.
                                     Taxpayers are generally not treated as having had an oppor-
                                     tunity to dispute a liability that is self-reported as due on
                                     their Federal income tax returns. Montgomery v. Commis-
                                     sioner, 122 T.C. 1, 9 (2004). But petitioner never raised the
                                     issue of the amount of the 2009 tax liability during the CDP
                                     hearing, and we cannot review an issue not properly raised
                                     during the hearing. Giamelli v. Commissioner, 129 T.C. 107,
                                     114 (2007).
                                        At the Court hearing petitioner confirmed that he does not
                                     contest the validity of the underlying tax liability. Rather,
                                     petitioner contends that the CDP hearing was inappropriate
                                     because Ms. Holsey did not consider his 2010 and 2011 tax
                                     liabilities. Therefore, we review respondent’s determination
                                     for abuse of discretion. See Goza v. Commissioner, 114 T.C.
                                     at 181–182. Whether an abuse of discretion has occurred
                                     depends upon whether the exercise of discretion is without
                                     sound basis in fact or law. Freije v. Commissioner, 125 T.C.
                                     14, 22–23 (2005).
                                     2010 and 2011 Tax Years
                                       ‘‘To the extent practicable, a CDP hearing with respect to
                                     one tax period shown on a CDP notice will be com-
                                     bined with any and all other CDP hearings which the tax-
                                     payer has requested.’’ Sec. 301.6330–1(d)(2), Q&A–D2,
                                     Proced. & Admin. Regs. In order for the Secretary to levy on
                                     property or property rights for an unpaid tax liability he
                                     must have first complied with certain requirements set out
                                     above. Respondent has not yet sent a written notice for the
                                     2010 and 2011 tax years advising petitioner of his right to
                                     a section 6330 hearing. See sec. 6330. Therefore, the 2010
                                     and 2011 tax years were not properly before the Appeals
                                     Office. Accordingly, respondent did not commit an abuse of
                                     discretion in not considering petitioner’s 2010 and 2011 tax
                                     years at the CDP hearing. See Andre v. Commissioner, 127
                                     T.C. 68 (2006).
                                     Installment Agreement
                                      During a CDP hearing regarding a levy, the Appeals officer
                                     must consider any relevant issue raised by the taxpayer that




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                                     266                 142 UNITED STATES TAX COURT REPORTS                                     (259)


                                     is related to the unpaid tax or the proposed levy. Sec.
                                     6330(c)(2)(A). In particular, section 6330(c)(2)(A)(iii) requires
                                     the Appeals officer to consider ‘‘offers of collection alter-
                                     natives, which may include the posting of a bond, the substi-
                                     tution of other assets, an installment agreement, or an offer-
                                     in-compromise.’’ See Goza v. Commissioner, 114 T.C. at 180–
                                     182.
                                        Petitioner also contends Appeals erred in stating that he
                                     wanted an installment agreement. During the CDP hearing
                                     petitioner did not request an installment agreement. At the
                                     hearing on respondent’s motion petitioner explicitly stated
                                     that he did not want an installment agreement; however,
                                     petitioner’s Form 12153 states that he wished to discuss
                                     an installment agreement as a collection alternative.
                                     Respondent did not commit an abuse of discretion by dis-
                                     cussing an installment agreement in the letter sent to peti-
                                     tioner. Additionally, this issue is not material to the Court’s
                                     decision in resolving the summary judgment motion.
                                     Spendthrift Provision in the Kraft Trust
                                        A spendthrift trust is a creation of State law which gen-
                                     erally prevents creditors from invading the principal of a
                                     trust in order to satisfy the beneficiaries’ debts; however,
                                     there are exceptions. In cases where the Commissioner
                                     asserts a tax lien or levy, the first question is to what ‘‘extent
                                     the taxpayer ha[s] ‘property’ or ‘rights to property’ to which
                                     the tax lien [or levy] could attach. In answering that ques-
                                     tion, both federal and state courts must look to state law’’.
                                     Aquilino v. United States, 363 U.S. 509, 513 (1960). The
                                     Kraft Trust agreement specifically states that the trust shall
                                     be governed by the laws of the District of Columbia. Accord-
                                     ingly, we look to the laws of the District of Columbia to
                                     determine petitioner’s property rights. The District of
                                     Columbia Code provides that whether or not the terms of a
                                     ‘‘trust contain a spendthrift provision, the following rules
                                     apply: * * * With respect to an irrevocable trust, a creditor
                                     or assignee of the settlor may reach the maximum amount
                                     that can be distributed to or for the settlor’s benefit’’. D.C.
                                     Code sec. 19–1305.05(a)(2) (Lexis Nexis 2013); see also Uni-
                                     form Trust Code sec. 505(a)(2), 7C U.L.A. 535 (2006). 4
                                           4 The   District of Columbia has, by statute, adopted the Uniform Trust




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                                     (259)                           KRAFT v. COMMISSIONER                                        267


                                     According to the Uniform Trust Code comments, ‘‘a settlor
                                     who is also a beneficiary may not use the trust as a shield
                                     against the settlor’s creditors.’’ Uniform Trust Code sec. 505
                                     cmt. (citing Restatement (Third) of Trusts, section 58(2)).
                                     Additionally, ‘‘whether the trust contains a spendthrift provi-
                                     sion or not, a creditor of the settlor may reach the maximum
                                     amount that the trustee could have paid to the settlor-bene-
                                     ficiary. If the trustee has discretion to distribute the entire
                                     income and principal to the settlor, the effect of this sub-
                                     section is to place the settlor’s creditors in the same position
                                     as if the trust had not been created.’’ Id. Therefore, the IRS
                                     is not prohibited from collecting from the Kraft Trust in
                                     order to satisfy petitioner’s tax liability.
                                        The Appeals officer is required to take into consideration
                                     whether the proposed collection action ‘‘balances the need for
                                     the efficient collection of taxes with the legitimate concern of
                                     the person that any collection action be no more intrusive
                                     than necessary.’’ Sec. 6330(c)(3)(C). Additionally, the tax-
                                     payer ‘‘may raise at the [CDP] hearing any relevant issue
                                     relating to the unpaid tax or the proposed levy, including
                                     * * * the substitution of other assets’’. Sec. 6330(c)(2)(A)(iii).
                                     Petitioner alleges that he requested the Commissioner to
                                     levy upon the Kraft Trust and the Commissioner has com-
                                     mitted an abuse of discretion by not determining to do so; 5
                                     however, the Commissioner may levy ‘‘upon any property, or
                                     rights to property * * * belonging to the taxpayer.’’ Sec.
                                     301.6331–1(a), Proced. & Admin. Regs.
                                        Additionally, the Internal Revenue Manual also specifically
                                     states that ‘‘[u]nless specifically exempt, any taxpayer prop-
                                     erty or rights to property can be levied.’’ Internal Revenue
                                     Manual pt. 5.19.4.1(2) (Jan. 3, 2012). Even if the Commis-
                                     sioner was inclined to specifically levy on the Kraft Trust,
                                     there would first need to be a ‘‘thorough investigation’’ into

                                     Code sec. 505 in whole effective March 4, 2004. See D.C. Code sec. 19–1301
                                     note (Lexis Nexis 2013).
                                       5 Petitioner asserts that respondent should levy on the Kraft Trust be-

                                     cause it is a quicker and a more efficient way to satisfy his tax deficiency;
                                     however, even if respondent were to levy upon the Kraft Trust, there is
                                     a very real possibility that the trustees of the Kraft Trust could feel that
                                     their fiduciary duties require them to oppose such a levy, which could
                                     cause even more litigation and additional delay.




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                                     268                  142 UNITED STATES TAX COURT REPORTS                                     (259)


                                     the status of the specific property. 6 See sec. 6331(j)(1). There
                                     is no evidence in the record that a ‘‘thorough investigation’’
                                     of the Kraft Trust has occurred. Caselaw has made clear that
                                     while there must be an inquiry of whether, inter alia, there
                                     is enough equity in property owned by the taxpayer, such
                                     matters occur later in the collection process. See Medlock v.
                                     United States, 325 F. Supp. 2d 1064, 1079 (C.D. Cal. 2003);
                                     see also Living Care Alts. of Utica, Inc. v. United States, 411
                                     F.3d 621, 629 (6th Cir. 2005) (‘‘We * * * find no statutory
                                     violation arising from the IRS’s failure to investigate at this
                                     time the available equity in the taxpayer’s property. This
                                     failure cannot, therefore, provide the basis for overturning
                                     the Appeals Officers’ balancing analyses or final decisions.’’);
                                     Tucker v. Commissioner, 135 T.C. 114, 140–142 (2010), aff ’d,
                                     676 F.3d 1129 (D.C. Cir. 2012). Accordingly, respondent did
                                     not abuse his discretion by not determining to levy upon the
                                     Kraft Trust.

                                                                                 Conclusion
                                        In conclusion, we hold that the settlement officer verified
                                     that the requirements of all applicable law and administra-
                                     tive procedure were met. The Court also concludes that the
                                     settlement officer did not abuse her discretion in determining
                                     that the proposed levy action appropriately balanced the
                                     need for efficient collection of taxes with petitioner’s concerns
                                     that the levy be no more intrusive than necessary. We will
                                     therefore grant respondent’s motion for summary judgment.
                                        In reaching our decision, we have considered all arguments
                                     made by the parties, and to the extent not mentioned or
                                     addressed, they are irrelevant or without merit.
                                        To reflect the foregoing,
                                                                      An appropriate order and decision will be
                                                                    entered.

                                                                                f


                                           6 It
                                            may well be that in substance petitioner is asking the Court to en-
                                     join respondent from collecting tax from him directly and instead order re-
                                     spondent to collect only from the Trust. If so, such an injunction would run
                                     afoul of sec. 7421, the Anti-Injunction Act.




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