                                            TOM REED, PETITIONER v. COMMISSIONER                               OF INTERNAL
                                                         REVENUE, RESPONDENT
                                                    Docket No. 27604–11L.                 Filed September 23, 2013.

                                                 P failed to file Federal income tax returns timely for years
                                              1987 through 2001. P subsequently submitted delinquent
                                              returns but failed to fully satisfy the outstanding tax liabil-
                                              ities. P submitted two separate offers-in-compromise (OICs) to
                                              settle the outstanding tax liabilities. R rejected the first OIC.
                                              R returned the second OIC. R issued a final notice of intent
                                              to levy. P requested a collection due process hearing (collec-
                                              tion hearing). P raised issues during the collection hearing
                                              regarding R’s handling of the two OICs and requested that
                                              the returned OIC be reopened. R concluded that he did not
                                              have the authority to reopen the returned OIC and sustained
                                              the final notice of intent to levy. P contends that R abused his
                                              discretion in sustaining the final notice of intent to levy. P
                                              argues that R abused his discretion by concluding that he
                                              lacked the authority to reopen an OIC based on doubt as to
                                              collectibility that R returned to P years before the collection
                                              hearing commenced. R argues this Court lacks jurisdiction to
                                              determine whether he abused his discretion because P pro-
                                              posed no new OIC during the collection hearing. R further
                                              argues that this Court lacks jurisdiction because P has no
                                              judicial review rights relating to R’s rejecting or returning an
                                              OIC. Held: This Court has jurisdiction to determine whether
                                              R abused his discretion in sustaining the final notice of intent
                                              to levy. Held, further, R cannot be required to reopen an OIC
                                              based on doubt as to collectibility that R returned to P years
                                              before the collection hearing commenced. Held, further, R did
                                              not abuse his discretion in sustaining the final notice of intent
                                              to levy.

                                     248




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                                     (248)                             REED v. COMMISSIONER                                        249


                                       George W. Connelly, Jr., Heather M. Pesikoff, and Renesha
                                     N. Fountain, for petitioner.
                                       David Baudilio Mora and Gordon P. Sanz, for respondent.
                                                                                  OPINION

                                        KROUPA, Judge: This collection review matter is before the
                                     Court because petitioner challenges a determination notice.
                                     See sec. 6330(d)(1). 1 Respondent issued the determination
                                     notice sustaining a final notice of intent to levy (proposed
                                     levy action). The primary issue we are asked to decide is
                                     whether respondent abused his discretion in sustaining the
                                     proposed levy action. We hold he did not.
                                        Determining whether respondent abused his discretion
                                     requires us to first consider three questions. Two of these
                                     questions involve well-trodden areas of law. The remaining
                                     question involves an issue of first impression. That question
                                     is: can respondent be required to reopen an offer-in-com-
                                     promise (OIC) based on doubt as to collectibility that he had
                                     returned to petitioner as unprocessable years before a collec-
                                     tion due process hearing (collection hearing) commenced? 2
                                     We hold that respondent cannot be required to reopen an
                                     OIC based on doubt as to collectibility that he had returned
                                     to petitioner as unprocessable years before the collection
                                     hearing commenced.

                                                                                Background
                                       Some of the facts have been stipulated and are so found.
                                     The stipulation of facts and its accompanying exhibits are
                                           1 All
                                             section references are to the Internal Revenue Code in effect at all
                                     relevant times.
                                        2 This question concerns the interaction of secs. 7122 and 6330 and the

                                     consequences that flow from the Commissioner’s rejecting an OIC versus
                                     his returning an OIC. The Court previously addressed a different question
                                     on similar facts. See Lloyd v. Commissioner, T.C. Memo. 2008–15. The
                                     Court at first had difficulty deciphering the taxpayer’s exact argument in
                                     Lloyd. The Court ultimately concluded, however, that the taxpayer in
                                     Lloyd was arguing that an Appeals officer abused his discretion in failing
                                     to use the taxpayer’s reasonable collection potential as calculated in con-
                                     nection with an earlier, returned OIC. Petitioner here, on the other hand,
                                     argues respondent abused his discretion by concluding in the determina-
                                     tion notice that he lacked the authority to reopen an OIC based on doubt
                                     as to collectibility that he had returned to petitioner as unprocessable
                                     years before the collection hearing commenced.




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                                     250                 141 UNITED STATES TAX COURT REPORTS                                    (248)


                                     incorporated by this reference. Petitioner resided in Texas at
                                     the time he filed the petition.
                                        Petitioner failed to file Federal income tax returns timely
                                     for years 1987 through 2001 (years at issue). 3 Petitioner
                                     eventually filed returns for the years at issue (delinquent
                                     returns), but did not fully satisfy his liabilities for the taxes,
                                     penalties and interest arising from the delinquent returns
                                     (outstanding tax liabilities). 4 Petitioner subsequently sub-
                                     mitted two separate OICs to settle his outstanding tax liabil-
                                     ities.
                                     A. The 2004 Offer
                                        Petitioner first submitted an OIC in 2004 (2004 offer) to
                                     respondent’s Houston Offer in Compromise Unit (offer unit).
                                     Respondent determined the outstanding tax liabilities at the
                                     time petitioner submitted the 2004 offer to be more than
                                     $480,000. Petitioner proposed in the 2004 offer to settle his
                                     outstanding tax liabilities for $22,000 (which was less than
                                     5% of the outstanding tax liabilities) based on doubt as to
                                     collectibility. The offer unit concluded respondent could
                                     reasonably collect more from petitioner than petitioner had
                                     proposed to pay in the 2004 offer. Accordingly, the offer unit
                                     proposed that the 2004 offer be rejected.
                                        Petitioner appealed the proposed rejection to the Internal
                                     Revenue Service Appeals Office in Houston, Texas (Houston
                                     Appeals). Houston Appeals determined that petitioner had
                                     received $258,000 from a real estate sale in 2001. Houston
                                     Appeals further determined that petitioner used a small por-
                                     tion of the real estate proceeds to pay business expenses and
                                     lost the remaining proceeds through high-risk day trading in
                                     the stock market. Houston Appeals therefore found that peti-
                                     tioner had dissipated the real estate proceeds with inten-
                                     tional disregard for his outstanding tax liabilities. Houston
                                     Appeals included the dissipated real estate proceeds in the
                                     calculation of an acceptable offer amount and sustained the
                                     offer unit’s decision to reject the 2004 offer.
                                       3 Petitioner and respondent have stipulated that the years giving rise to

                                     the underlying Federal income tax liabilities span 1987 through 2001. We
                                     note, however, that each of the OICs petitioner submitted included 1986
                                     as well. The underlying Federal income tax liabilities are not presently at
                                     issue. Accordingly, we merely note this discrepancy.
                                       4 The contents of the delinquent returns are not presently at issue.




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                                     (248)                            REED v. COMMISSIONER                                        251


                                     B. The 2008 Offer
                                        Petitioner next submitted an OIC to the offer unit in 2008
                                     (2008 offer). The 2008 offer proposed settling the outstanding
                                     tax liabilities (which exceeded almost one-half million dol-
                                     lars) for $35,196, based on doubt as to collectibility. The offer
                                     unit determined that petitioner had failed to demonstrate he
                                     was in compliance with his Federal income tax obligations at
                                     the time he submitted the 2008 offer. The offer unit
                                     returned 5 the 2008 offer to petitioner as unprocessable. Peti-
                                     tioner then exchanged several letters with the offer unit.
                                     Petitioner attempted through the letter exchange to have the
                                     offer unit reconsider its returning the 2008 offer. To this end,
                                     petitioner argued that he was in fact in compliance with his
                                     Federal income tax obligations at the time he submitted the
                                     2008 offer. Petitioner also argued in the letter exchange that
                                     he should be given the opportunity to become compliant if,
                                     in fact, he was not at the time he submitted the 2008 offer.
                                     Petitioner continued to make payments during the pendency
                                     of the letter exchange consistent with the 2008 offer. The
                                     letter exchange ultimately failed, however, to convince the
                                     offer unit to alter its decision to return the 2008 offer to peti-
                                     tioner.
                                     C. The Collection Due Process Hearing
                                        Respondent subsequently issued a final notice of intent to
                                     levy (levy notice) for the years at issue. Petitioner timely
                                     requested a collection hearing. Settlement Officer Liana A.
                                     White (SO White) at Houston Appeals was assigned to con-
                                     duct the collection hearing. The relevant issues petitioner
                                     raised at the collection hearing involved the manner by
                                     which respondent had handled the 2004 offer and the 2008
                                     offer. SO White issued the determination notice in late 2011
                                     sustaining the proposed levy action. Petitioner timely filed
                                     the petition.


                                        5 The distinction between a rejected OIC and a returned OIC is impor-

                                     tant, as we later explain. Briefly, a taxpayer has the right to administra-
                                     tively appeal the Commissioner’s rejecting an OIC but has no right to ap-
                                     peal the Commissioner’s returning an OIC.




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                                     252                 141 UNITED STATES TAX COURT REPORTS                                    (248)


                                                                                Discussion
                                        We must now decide whether respondent abused his
                                     discretion in sustaining the proposed levy action. We focus on
                                     the manner by which respondent addressed the issues peti-
                                     tioner raised during the collection hearing.
                                        Petitioner advances two theories to argue respondent
                                     abused his discretion. Petitioner first attacks SO White’s
                                     conclusion that she lacked the authority to reopen the 2008
                                     offer during the collection hearing. See sec. 6330(c)(2)(A)(iii).
                                     Petitioner contends that SO White’s conclusion lacks a sound
                                     basis in fact or law. Petitioner next attacks respondent’s
                                     rejecting the 2004 offer and returning the 2008 offer. Peti-
                                     tioner makes several related arguments under this theory.
                                     The thrust of these arguments is that respondent improperly
                                     rejected the 2004 offer and improperly returned the 2008
                                     offer. Petitioner argues that respondent abused his discretion
                                     in sustaining the proposed levy action in light of these
                                     improprieties.
                                        We first address the scope of our jurisdiction because
                                     respondent argues we lack jurisdiction. We next address the
                                     standard of our review. We then address each of petitioner’s
                                     theories and its related arguments, in turn.
                                     A. Scope of Jurisdiction
                                        We now review the scope of our jurisdiction. The Tax Court
                                     is a court of limited jurisdiction. Sec. 7442; Naftel v. Commis-
                                     sioner, 85 T.C. 527, 529 (1985). We may exercise jurisdiction
                                     only to the extent expressly authorized by Congress. Stewart
                                     v. Commissioner, 127 T.C. 109, 112 (2006). Questions of juris-
                                     diction are fundamental and must be addressed whenever it
                                     appears this Court may lack jurisdiction. Wheeler’s Peachtree
                                     Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 179 (1960). We
                                     have jurisdiction to determine whether we have jurisdiction.
                                     Stewart v. Commissioner, 127 T.C. at 112.
                                        Respondent argues this Court lacks jurisdiction because
                                     petitioner proposed no new OIC during the collection hearing
                                     and the Court therefore has nothing to consider. Respondent
                                     also argues this Court lacks jurisdiction because petitioner
                                     has no right of judicial review of respondent’s rejecting the
                                     2004 offer or returning the 2008 offer. We are perplexed by
                                     the arguments that respondent raises as they appear to miss




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                                     (248)                            REED v. COMMISSIONER                                        253


                                     the thrust of the theories petitioner advances. Moreover, it is
                                     fundamental that we have jurisdiction in collection matters
                                     if the Commissioner issues a determination notice and a tax-
                                     payer timely files a petition. See Sego v. Commissioner, 114
                                     T.C. 604 (2000); Goza v. Commissioner, 114 T.C. 176 (2000).
                                     Both conditions apply here. Accordingly, we have jurisdiction
                                     to review the determination SO White made to sustain the
                                     proposed levy action. Sec. 6330(d); Offiler v. Commissioner,
                                     114 T.C. 492, 498 (2000).
                                     B. Standard of Review
                                       We now focus on the standard we apply in determining
                                     whether respondent abused his discretion. Petitioner does
                                     not argue the validity of his outstanding tax liabilities.
                                     Accordingly, we review the determination sustaining the pro-
                                     posed levy action for abuse of discretion. Sego v. Commis-
                                     sioner, 114 T.C. at 610; Goza v. Commissioner, 114 T.C. at
                                     181–182. We must therefore decide whether respondent acted
                                     in a manner that was arbitrary, capricious or without a
                                     sound basis in fact or law. Murphy v. Commissioner, 125 T.C.
                                     301, 320 (2005), aff ’d, 469 F.3d 27 (1st Cir. 2006).
                                     C. Authority To Reopen the 2008 Offer
                                        We now address petitioner’s contention that SO White had
                                     the authority to reopen the 2008 offer during the collection
                                     hearing. SO White proposed, during the collection hearing, a
                                     collection alternative based on petitioner’s then-current
                                     financial data. Petitioner rejected the collection alternative
                                     SO White proposed. Petitioner argued that SO White had to
                                     instead reopen the 2008 offer and apply the payments peti-
                                     tioner made during the pendency of his letter exchange with
                                     the offer unit toward the 2008 offer. SO White concluded that
                                     she lacked authority to reopen the 2008 offer. Petitioner con-
                                     tends SO White’s conclusion has no sound basis in fact or
                                     law and therefore respondent abused his discretion. Peti-
                                     tioner urges us to so find because reopening the 2008 offer
                                     would permit respondent to treat petitioner as having met
                                     his payment obligations under the 2008 offer. And doing so
                                     would seemingly extinguish his outstanding tax liabilities as
                                     he paid the amount he offered to pay in the 2008 offer.




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                                     254                 141 UNITED STATES TAX COURT REPORTS                                    (248)


                                       This issue of first impression concerns the interaction of
                                     sections 7122 and 6330 and the consequences that flow from
                                     the Commissioner’s rejecting an OIC versus his returning an
                                     OIC. We begin by reviewing the authority Congress granted
                                     to the Commissioner to compromise unpaid tax liabilities.
                                     See sec. 7122. We then turn to whether the Commissioner
                                     can exercise this compromise authority in the context of a
                                     collection hearing. See sec. 6330.
                                           1. Section 7122
                                       We first look to the Commissioner’s authority to com-
                                     promise an unpaid tax liability. The Commissioner is
                                     required to collect all Federal income tax liabilities. Sec.
                                     6301. The Commissioner has discretion, however, to com-
                                     promise an unpaid tax liability. Sec. 7122(a). The pertinent
                                     regulations set forth doubt as to collectibility as one of three
                                     grounds for compromising an unpaid tax liability. Sec.
                                     301.7122–1(b)(2), Proced. & Admin. Regs. Doubt as to collect-
                                     ibility exists where a taxpayer’s assets and income are less
                                     than the taxpayer’s unpaid tax liability. Id.
                                           2. Section 6330
                                        We now turn to the Commissioner’s exercise of this com-
                                     promise authority in the context of a collection hearing. A
                                     taxpayer has a right to a collection hearing with an Appeals
                                     officer before the Commissioner can levy on the taxpayer’s
                                     property. Sec. 6330. The Appeals officer may consider an OIC
                                     proposed during a collection hearing. Sec. 6330(c)(2)(A)(iii). A
                                     taxpayer must propose an OIC for it to be considered during
                                     the collection hearing. See Sullivan v. Commissioner, T.C.
                                     Memo. 2009–4; Godwin v. Commissioner, T.C. Memo. 2003–
                                     289, aff ’d, 132 Fed. Appx. 785 (11th Cir. 2005).
                                           3. Interaction of Sections 7122 and 6330
                                       We now address whether the Commissioner can be
                                     required to reopen an OIC based on doubt as to collectibility
                                     that he returned to a taxpayer years before a collection
                                     hearing commenced. Petitioner urges us to adopt the theory
                                     that respondent can be required to do so. See sec.
                                     6330(c)(2)(A)(iii). We decline to adopt petitioner’s theory for
                                     two reasons.




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                                     (248)                            REED v. COMMISSIONER                                        255


                                        First, adopting the theory petitioner advances would
                                     impermissibly expand the Commissioner’s authority to com-
                                     promise an unpaid tax liability. The Commissioner must
                                     evaluate an OIC proposed during a collection hearing
                                     according to his authority to compromise an unpaid tax
                                     liability. See secs. 6330, 7122; Johnson v. Commissioner, 136
                                     T.C. 475, 484–485 (2011), aff ’d, 502 Fed. Appx. 1 (D.C. Cir.
                                     2013). Here, petitioner requested in 2011 that respondent
                                     consider the 2008 offer based on doubt as to collectibility.
                                        Taxpayers must submit current financial data when pro-
                                     posing an OIC based on doubt as to collectibility. See Sul-
                                     livan v. Commissioner, T.C. Memo. 2009–4; Godwin v.
                                     Commissioner, T.C. Memo. 2003–289. The theory petitioner
                                     advances would impermissibly expand the Commissioner’s
                                     authority by allowing the Commissioner to evaluate an OIC
                                     based on doubt as to collectibility using a taxpayer’s past
                                     financial circumstances. See sec. 7122(d)(1); see, e.g., Internal
                                     Revenue Manual (IRM) pt. 5.8.5.3(1) (Oct. 22, 2010) (finan-
                                     cial data should be no more than six months old); IRM pt.
                                     5.15.1.1(4) (Oct. 2, 2012) (same).
                                        Presently, for example, petitioner’s theory would have
                                     allowed petitioner to effectively propose an OIC based on
                                     doubt as to collectibility in 2011 using his financial data from
                                     2008. Respondent, in turn, would be forced to evaluate the
                                     OIC based on doubt as to collectibility using financial data
                                     that only by mere chance reflects petitioner’s then-current
                                     financial circumstances.
                                        And second, adopting the theory petitioner advances would
                                     substantially interfere with the statutory scheme Congress
                                     created. Taxpayers may currently seek administrative review
                                     of the Commissioner’s rejecting an OIC. Sec. 7122(e). Tax-
                                     payers currently have no right, however, to seek review of
                                     the Commissioner’s returning an OIC. Sec. 301.7122–
                                     1(f)(5)(ii), Proced. & Admin. Regs. The theory petitioner
                                     advances would, in effect, create additional layers of adminis-
                                     trative and judicial review of the Commissioner’s returning
                                     an OIC before a collection hearing commences. See sec.
                                     6330(d). Petitioner’s theory would not create analogous layers
                                     of review, however, for the Commissioner’s returning an OIC
                                     after a collection hearing concludes. See id. Whether a tax-
                                     payer may access these new layers of review would therefore
                                     depend on when the Commissioner returns an OIC. Peti-




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                                     256                 141 UNITED STATES TAX COURT REPORTS                                    (248)


                                     tioner offers no, and we can find no, reasonable explanation
                                     for such disparate treatment based only on when the
                                     Commissioner returns an OIC.
                                     D. Rejecting the 2004 Offer
                                        We now turn to respondent’s rejecting the 2004 offer. Peti-
                                     tioner submitted the 2004 offer based on doubt as to collect-
                                     ibility. An OIC based on doubt as to collectibility is accept-
                                     able if it reflects the taxpayer’s reasonable collection poten-
                                     tial (RCP). Murphy v. Commissioner, 125 T.C. at 309; Rev.
                                     Proc. 2003–71, sec. 4.02(2), 2003–2 C.B. 517, 517. An OIC
                                     will generally be rejected if the RCP meets or exceeds the
                                     amount offered in the OIC. IRM pt. 5.8.4.3 (May 10, 2013).
                                     The value of dissipated assets may be included in a tax-
                                     payer’s RCP. See Tucker v. Commissioner, T.C. Memo. 2011–
                                     67, aff ’d, 676 F.3d 1129 (D.C. Cir. 2012); IRM pt. 5.8.5.16
                                     (Oct. 22, 2010).
                                        SO White reviewed the account transcripts and other
                                     information in respondent’s files relating to respondent’s
                                     rejecting the 2004 offer. SO White determined that Houston
                                     Appeals had rejected the 2004 offer based on its finding that
                                     petitioner received and dissipated approximately $258,000
                                     from the real estate sale in 2001. SO White determined that
                                     Houston Appeals had properly included the dissipated real
                                     estate proceeds in the calculation of an acceptable offer
                                     amount. SO White further determined that respondent’s
                                     rejecting the 2004 offer was proper based on a reasoned anal-
                                     ysis of the facts before her. Accordingly, respondent did not
                                     abuse his discretion in sustaining the proposed levy action in
                                     light of his rejecting the 2004 offer. 6
                                     E. Returning the 2008 Offer
                                       We now turn to respondent’s returning the 2008 offer. The
                                     Commissioner has an established policy of requiring tax-
                                     payers to be in compliance with current filing and estimated
                                     tax payment requirements to be eligible for collection alter-
                                       6 Moreover, it appears that petitioner may have been precluded from

                                     even raising this issue at the collection hearing in 2011 because it was
                                     raised and considered at the administrative hearing on petitioner’s appeal
                                     of the rejection of the 2004 offer. See sec. 6330(c)(4); Perkins v. Commis-
                                     sioner, 129 T.C. 58, 63 (2007). Respondent does not raise this argument,
                                     however, and we therefore need not decide this issue.




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                                     (248)                            REED v. COMMISSIONER                                        257


                                     natives. See Otto’s E–Z Clean Enters., Inc. v. Commissioner,
                                     T.C. Memo. 2008–54. Accordingly, the Commissioner does not
                                     abuse his discretion by returning an OIC based on a tax-
                                     payer’s    failure   to   meet     current    tax   obligations.
                                     Scharringhausen v. Commissioner, T.C. Memo. 2008–26
                                     (citing Christopher Cross, Inc. v. United States, 461 F.3d 610,
                                     613 (5th Cir. 2006)).
                                        SO White reviewed the files and transcripts pertaining to
                                     2007 and 2008. SO White testified, and the record confirms,
                                     that petitioner was required to pay an addition to tax for
                                     failure to pay estimated tax for 2007. SO White found this
                                     addition to tax arose from petitioner’s failure to meet his cur-
                                     rent estimated tax obligations at the time he submitted the
                                     2008 offer for consideration. SO White determined that
                                     respondent’s returning the 2008 offer was proper based on a
                                     reasoned analysis of the facts before her. Accordingly,
                                     respondent did not abuse his discretion in sustaining the pro-
                                     posed levy action in light of his returning the 2008 offer.
                                     F. Conclusion
                                       Petitioner did not raise any other meritorious challenges to
                                     SO White’s determination to sustain the proposed collection
                                     action. Nor did petitioner otherwise introduce any credible
                                     evidence or persuasive arguments that would convince us
                                     that SO White acted in a manner that was arbitrary, capri-
                                     cious or without a sound basis in fact or law.
                                       The record reflects that SO White verified that respondent
                                     satisfied all applicable legal and administrative require-
                                     ments, considered all relevant issues petitioner raised, and
                                     balanced the intrusiveness of the proposed collection actions
                                     against the need for effective tax collection. See sec. 6330(c).
                                     We therefore conclude SO White did not abuse her discretion
                                     by sustaining the proposed collection action.
                                       We have considered all arguments made in reaching our
                                     decision, and, to the extent not mentioned, we conclude that
                                     they are moot, irrelevant, or without merit.
                                       To reflect the foregoing,
                                                                          Decision will be entered for respondent.

                                                                               f




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