                       124 T.C. No. 5



                UNITED STATES TAX COURT



          WILLIAM J. MCCORKLE, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 1433-03L.             Filed February 24, 2005.

     R’s Appeals Office determined that R was warranted
in filing a notice of Federal tax lien (NFTL) against P
with respect to his 1996 Federal income tax liability.
P assigns error on the grounds that R erroneously
refunded his $2 million remittance for 1996 to the U.S.
Marshals Service pursuant to a forfeiture order issued
under 18 U.S.C. sec. 982 (2000) by the District Court
in an unrelated, non-tax criminal case. R and P have
both moved for summary judgment.

     1. Held: R was dutybound to comply with the
forfeiture order, which is not subject to collateral
attack in this court.

     2. Held, further, R had no duty to defend against
the forfeiture order.

     3. Held, further, the Appeals Office did not err
in determining that R was warranted in filing the NFTL;
therefore, R’s motion for summary judgment will be
granted and P’s will be denied.
                               - 2 -

     William J. McCorkle, pro se.

     Pamela L. Mable, for respondent.



                              OPINION

     HALPERN, Judge:   This case is before the Court to review a

determination made by respondent’s Appeals Office (Appeals) that

respondent was warranted in filing a notice of Federal tax lien

(the notice of Federal tax lien or NFTL) against petitioner with

respect to his Federal income tax liability for 1996 (1996 tax

liability).   We review that determination pursuant to sections

6320(c) and 6330(d)(1).1   Petitioner assigns error to Appeals’

determination on the grounds that Appeals erred in determining

that a $2 million remittance made by petitioner to the Internal

Revenue Service (IRS) on or about May 16, 1997 (the $2 million

remittance), did not satisfy the 1996 tax liability.   Appeals

determined that the $2 million remittance did not satisfy the

1996 tax liability because that amount had been refunded to the

U.S. Marshals Service (Marshals Service) pursuant to an order of

the court in a non-tax criminal case involving petitioner.    The

order specified that the $2 million was subject to criminal

forfeiture pursuant to 18 U.S.C. sec. 982 (2000).   There being

little dispute as to the underlying facts, the parties have each


     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986, as amended, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
                                - 3 -

moved for summary judgment (together, the motions).

       Rule 121 provides for summary judgment.   Summary judgment

may be granted with respect to all or any part of the legal

issues in controversy "if the pleadings, answers to

interrogatories, depositions, admissions, and any other

acceptable materials, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that a

decision may be rendered as a matter of law."     Rule 121(a) and

(b).

       We are satisfied that there is no genuine issue as to any

material fact and that a decision may be rendered as a matter of

law.    For the reasons that follow, we shall grant respondent’s

motion for summary judgment and deny petitioner’s.

                             Background

Introduction

       We draw the following facts from the pleadings, requests for

admissions (together with any objections or responses thereto),

the motions, memoranda in support of the motions, responses to

the motions, other documents filed with the Court, and reports of

the Court of Appeals for the Eleventh Circuit concerning criminal

proceedings involving petitioner and others; viz United States v.

McCorkle, 321 F.3d 1292 (11th Cir. 2003), and United States v.

Venske, 296 F.3d 1284 (11th Cir. 2002).    Principally, we rely on

the Statement of the Facts contained in respondent’s Memorandum
                                 - 4 -

of Authorities in Support of Respondent’s Cross-Motion for

Summary Judgment and Response to Petitioner’s Motion for Summary

Judgment.    Respondent describes the facts so stated as being

undisputed, and it appears that petitioner agrees.2    For purposes

of disposing of the motions, we find the following facts to be

true.3

Residence

     At the time the petition was filed, petitioner was an inmate

at the Federal Correctional Institution, Jesup, Georgia.

The $2 Million Remittance

     Petitioner failed to file an income tax return for 1996,

although he requested (the request) and received an extension of

time, until August 15, 1997, to do so.    No payment of tax

accompanied the request, and the request recites that no income

tax is owed for 1996.    When, subsequently, petitioner made the $2

million remittance (on or about May 16, 1997), he indicated that

it was for his 1996 tax year, and respondent applied it to

petitioner’s account for 1996.    The $2 million remittance was not

accompanied by a tax return.    Petitioner made the $2 million


     2
        In Petitioner’s Response in Opposition to Respondent’s
Cross-Motion for Summary Judgment and Response to Petitioner’s
Motion for Summary Judgment, petitioner describes respondent’s
statement of facts as being merely incomplete: “Not all of the
undisputed facts are set forth in Respondent’s Memorandum of
authorities”.
     3
          All dollar amounts have been rounded to the nearest
dollar.
                              - 5 -

remittance on or about May 9, 1997, shortly after Federal agents

had seized petitioner’s property and documents.

The Criminal Case

     Petitioner was one of several defendants in the multicount

criminal case styled United States v. McCorkle, Criminal Docket

No. 98-CR-52-All (M.D. Fla.) (sometimes, the criminal case).    On

March 19, 1998, a superseding indictment was brought against

petitioner (among others), which included numerous counts

involving fraud and money laundering.   The money-laundering

counts were brought pursuant to 18 U.S.C. secs. 1956 and 1957,

and the superseding indictment charged that petitioner had

laundered and conspired to launder telemarketing fraud proceeds

from July 26, 1996, through July 2, 1997.

     The superseding indictment also contained a forfeiture count

alleging that any proceeds that petitioner obtained from fraud

and money laundering were forfeitable to the United States

pursuant to 18 U.S.C. sec. 982(a)(1).   Petitioner and his wife

had deposited $7 million in laundered proceeds into the Royal

Bank of Canada Trust Company, in the Cayman Islands.   Of that $7

million, $2 million was used to make the $2 million remittance,

and $2 million was transferred to a legal trust fund established

to pay the legal fees of petitioner’s (and his wife’s) criminal

defense attorneys, including F. Lee Bailey, which $2 million was

later transferred by Mr. Bailey to himself and others.
                               - 6 -

     On November 4, 1998, a jury convicted petitioner (among

others) of executing a telemarketing scheme in violation of 18

U.S.C. secs. 1341 (mail fraud) and 1343 (wire fraud), of

conspiring to launder the proceeds of the scheme in violation of

18 U.S.C. sec. 1956(h), and of laundering those proceeds in

violation of 18 U.S.C. secs. 1956(a)(2)(B) and 1957(a).    On

November 5, 1998, the United States District Court for the Middle

District of Florida (the District Court) submitted the criminal

forfeiture count to the jury, which returned a special verdict

finding that certain real and personal property, including

numerous bank accounts, was subject to forfeiture.   As part of

its determination, the jury concluded that, because it was

traceable to petitioner’s criminal acts, the $2 million

remittance was subject to forfeiture.   The jury also concluded

that the $2 million petitioner had transferred to the legal trust

fund established to pay his criminal attorneys, including Mr.

Bailey, was forfeitable, since it was also traceable to

petitioner’s criminal acts.   On December 16, 1998, pursuant to

the jury’s determination on the forfeiture count, the District

Court entered a forfeiture order (the forfeiture order),

requiring forfeiture of, among other things, the $2 million

remittance.

     Petitioner was sentenced on January 25, 1999.   Petitioner

appealed his conviction and sentence to the Court of Appeals for
                                - 7 -

the Eleventh Circuit, which affirmed the conviction but vacated

petitioner’s sentence and remanded the case to the District Court

for resentencing.    See United States v. Venske, 296 F.3d 1284

(11th Cir. 2002).4   The Court of Appeals left intact the

forfeiture aspects of the case.    United States v. McCorkle, 321

F.3d at 1294 n.1.

     Pursuant to the forfeiture order, on or about February 1,

1999, the Marshals Service sought to recover from respondent the

$2 million remittance.   On or about February 18, 1999, respondent

complied with the forfeiture order and returned $2 million to the

Marshals Service by making a manual refund and issuing a check

made payable to the Marshals Service (the refund).

Respondent’s Examination

     In 1999, after petitioner’s conviction for the offenses

described above, respondent commenced an examination of

petitioner’s Federal income tax liability for 1996.   That

examination resulted in the issuance of a notice of deficiency

for 1996, determining a deficiency in tax of $905,315 and various

additions to tax and penalties.   Petitioner did not petition the

Tax Court with respect to the notice of deficiency.   On October



     4
        After remand, the District Court conducted another
sentencing hearing on Sept. 11, 2003, and made certain findings.
The District Court then adopted and imposed its original sentence
against petitioner. Petitioner has appealed his resentencing to
the Court of Appeals for the Eleventh Circuit, which appeal is
pending.
                                 - 8 -

9, 2000, respondent assessed an income tax deficiency of

$905,315, an estimated tax penalty of $48,186, a miscellaneous

penalty of $656,353, a failure to pay penalty of $9,053, and

interest of $234,073.

Notice of Federal Tax Lien

     On or about April 18, 2002, respondent filed the notice of

Federal tax lien with the County Comptroller of Orange County,

Florida, showing “Unpaid Balance of Assessment” for 1996 in the

amount of $1,852,980.   On April 24, 2002, respondent issued to

petitioner Letter 3172, Notice of Federal Tax Lien Filing and

Your Right to a Hearing Under I.R.C. 6320.

Collection Due Process Hearing

     On May 3, 2002, petitioner timely requested a hearing under

section 6320 (collection due process hearing).   In that request,

petitioner opposed the filing of the NFTL and noted the $2

million remittance, which, he argued, had satisfied his 1996 tax

liability.   Because petitioner was incarcerated, the Appeals

Office accorded petitioner the collection due process hearing by

way of an exchange of correspondence.    During the course of the

hearing, a settlement officer conducting the hearing for the

Appeals Office learned of the forfeiture order and respondent’s

disposition of the $2 million remittance.

     On January 10, 2003, the Appeals Office sent to petitioner a

Notice of Determination Concerning Collection Action(s) Under
                                - 9 -

Section 6320 and/or 6330 (notice of determination) denying

petitioner any relief.   The notice of determination contained a

summary of the Appeals Office’s determination, which was further

detailed in an attachment authored by the settlement officer.        In

support of sustaining the filing of the NFTL, the settlement

officer determined that the $2 million remittance had been

subject to a criminal forfeiture proceeding and that petitioner

was not entitled to rely on those funds to satisfy the 1996 tax

liability.   The settlement officer also determined that the

filing of the NFTL was appropriate and no circumstances existed

to either release or withdraw it.      He further determined that

petitioner had admitted to his inability to pay the liability,

but petitioner had failed to request any collection alternatives

or to provide any information from which collection alternatives

could be considered.   The settlement officer sustained the filing

of the NFTL.

The Amended Petition

     Petitioner filed a petition and an amended petition.        In the

amended petition, petitioner states that, for 1996: “[He] paid

$2,000,000.00 estimated tax payment to the IRS, but never did

actually file a return.”    He adds:    “The Department of the

Treasury in a manual refund check refunded this $2,000,000.00 to

the U.S. Marshall’s service pursuant to a court order for

forfeiture.”   He claims:   “This refund based upon the court order
                                  - 10 -

of forfeiture is in error.”     He explains:   “At the time of

payment of the $2,000,000.00[,] no forfeiture order was in place

by the U.S. Courts.”    Therefore, he concludes, no tax lien is

appropriate, since, once he paid his tax for 1996, the IRS was

without authority to “unpay” it and demand that he pay it again.

                              Discussion

I.   Law

      A.   Collection Procedure

      Section 6321 imposes a lien for unpaid Federal taxes.

Section 6323 provides that the lien imposed by section 6321 is

not valid against certain persons until notice of the lien (the

NFTL) is filed in accordance with rules provided.      Section

6320(a) provides that, after the Commissioner has filed the NFTL,

the Commissioner must notify the taxpayer of the fact of the

filing and, among other things, the taxpayer’s right to request a

hearing.    If the taxpayer requests a hearing, the hearing is to

be conducted by Appeals, and the Appeals officer conducting the

hearing must verify that the requirements of any applicable law

or administrative procedure have been met.      Secs. 6320(c),

6330(c)(1).    The taxpayer requesting the hearing may raise “any

relevant issue” relating to the unpaid tax or the Commissioner’s

collection action.     Sec. 6330(c)(2)(A).   The taxpayer “may also

raise at the hearing challenges to the existence or amount of the

underlying tax liability” if the taxpayer did not receive any
                              - 11 -

statutory notice of deficiency for, or did not otherwise have an

opportunity to dispute, such tax liability.    Sec. 6330(c)(2)(B).

     Following the hearing, the Appeals officer must determine

whether the collection action is to proceed, taking into account

the verification the Appeals officer has made, the issues raised

by the taxpayer at the hearing, and whether the collection action

“balances the need for the efficient collection of taxes with the

legitimate concern of the * * * [taxpayer] that any collection

action be no more intrusive than necessary.”    Sec. 6330(c)(3)(C).

We have jurisdiction to review such determinations where we have

jurisdiction over the type of tax involved in the case.      Sec.

6330(d)(1)(A); see Iannone v. Commissioner, 122 T.C. 287, 290

(2004).   Where the underlying tax liability is properly at issue,

the taxpayer is entitled to a de novo hearing in this court.

E.g., 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.     Id. at 182.   When

faced with questions of law, as we are here (determining whether

petitioner may challenge the forfeiture order and whether

respondent was obligated to defend against it), the standard of

review makes no difference.   Whether characterized as a review

for abuse of discretion or as a consideration "de novo" (of a

question of law), we must reject erroneous views of the law.        See

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990); Abrams v.
                                - 12 -

Interco, Inc., 719 F.2d 23, 28 (2d Cir. 1983) (stating that it is

not inconsistent with the discretion standard for an appellate

court to decline to honor a purported exercise of discretion

which was infected by an error of law); Swanson v. Commissioner,

121 T.C. 111, 119 (2003).

     B.   Criminal Forfeiture

     Title 18 U.S.C. sec. 982, is entitled “Criminal forfeiture”,

and it governs forfeiture in cases involving convictions for

money laundering.   In pertinent part, 18 U.S.C. sec. 982(a)(1)

provides:

     Sec. 982   Criminal Forfeiture.

          (a)(1) The court, in imposing sentence on a person
     convicted of an offense in violation of * * * [18
     U.S.C. secs. 1956 or 1957] shall order that the person
     forfeit to the United States any property, real or
     personal, involved in such offense, or any property
     traceable to such property.

     The seizure of property forfeited under 18 U.S.C. sec.

982(a)(1) and any judicial proceeding relating to the forfeiture

are governed by 21 U.S.C. sec. 853 (2000) (except subsection (d)

thereof).   18 U.S.C. sec. 982(b)(1).    Title 21, U.S.C. sec.

853(c), addresses third party transfers and provides as follows:

     Sec. 853(c).   Third party transfers.

          All right, title, and interest in property
     described in * * * [18 U.S.C. sec. 982] vests in the
     United States upon the commission of the act giving
     rise to forfeiture under * * * [18 U.S.C. sec. 982].
     Any such property that is subsequently transferred to a
     person other than the defendant may be the subject of a
     special verdict of forfeiture and thereafter shall be
                                 - 13 -

      ordered forfeited to the United States, unless the
      transferee establishes in a hearing pursuant to
      subsection (n) of this section that he is a bona fide
      purchaser for value of such property who at the time of
      purchase was reasonably without cause to believe that
      the property was subject to forfeiture under this
      section.

      Title 21 U.S.C. sec. 853(n)(1), provides that, following the

entry of an order of forfeiture, the United States shall give

notice of the order, and section 853(n)(2) thereof provides that

any person, “other than the defendant”, asserting a legal

interest in the property ordered to be forfeited, has 30 days to

petition the court for a hearing to adjudicate the validity of

his alleged interest.   Following the District Court’s disposition

of any petitions filed under 21 U.S.C. sec. 853(n)(2), or, if

none are filed, after the close of the period for filing such

petitions, 21 U.S.C. sec. 853(n)(7) provides “the United States

shall have clear title to property that is the subject of the

order of forfeiture and may warrant good title to any subsequent

purchaser or transferee.”

II.   Arguments of the Parties

      The essence of petitioner’s argument is that he satisfied

the 1996 tax liability with the $2 million remittance before he

forfeited to the United States his ownership rights in the

laundered funds (the source of the $2 million remittance).

Petitioner believes that the rights of the United States under

the forfeiture statute did not ripen until (1) he was convicted,
                                - 14 -

(2) the jury rendered a special verdict of forfeiture, and (3)

the District Court entered the forfeiture order.    Moreover,

petitioner argues that, since respondent was a bona fide

purchaser for value reasonably without cause to believe the $2

million remittance was subject to forfeiture, he could have

defended against the forfeiture order and, because he failed to

do so, should be barred from trying to collect the 1996 tax

liability.

       Respondent counters that, on account of his criminal

conviction, petitioner cannot challenge the validity of the

forfeiture order or respondent’s compliance with it.    Respondent

also argues that, since, at the time he received notice of the

forfeiture order, he had not assessed petitioner’s 1996 income

tax liability, he had no standing to make a claim as a bona fide

purchaser for value.

III.    Analysis

       A.   Introduction

       The jury in the criminal case returned a special verdict of

forfeiture with respect to the $2 million remittance.    In

returning the special verdict, the jury necessarily found that

petitioner had transferred $2 million of laundered proceeds to

the IRS.     Cf. United States v. McCorkle, 321 F.3d at 1294 n.2.

Thereafter, the District Court entered the forfeiture order, the

United States presumably notified respondent of the order, and,
                               - 15 -

since respondent failed to petition the court for a hearing to

adjudicate his rights in the laundered proceeds, the United

States gained clear title to the $2 million remittance, which the

Marshals Service collected.    See 21 U.S.C. sec. 853(c), (n)(1),

(2), (7).    The forfeiture order has neither been vacated by the

District Court, nor has the court’s decision to issue it been

reversed.    Therefore, respondent, like this court, must respect

it.   Moreover, respondent had no duty to challenge it.

      B.   Petitioner Cannot Challenge the Forfeiture Order

      Petitioner errs in his understanding of that portion of 21

U.S.C. sec. 853(c) that embodies what is known as the “relation-

back doctrine”, according to which title of the United States to

forfeited property “relates back” to the time of commission of

the illegal act underlying the forfeiture.    In pertinent part, 21

U.S.C. sec. 853(c) provides:    “All right, title, and interest in

[the forfeited] property * * * vests in the United States upon

the commission of the act giving rise to forfeiture”.     Contrary

to petitioner’s belief, therefore, the date on which the District

Court orders the forfeiture is not the date on which the rights

of the United States arise.    It is true that, until the order of

forfeiture is entered, the United States has no right to seize

the forfeited property, see 21 U.S.C. sec. 853(g), but, upon

entry of the order, the forfeiture relates back to the date of

the criminal act giving rise to the forfeiture.    See, e.g.,
                               - 16 -

Caplin & Drysdale v. United States, 491 U.S. 617, 627 (1989).

Neither petitioner’s nor our understanding of 21 U.S.C. sec.

853(c) is of moment, however, since we, as well as respondent,

must respect the forfeiture order and have no warrant to reject

it.   The rule is clear:   “[I]t is for the court of first instance

to determine the question of the validity of the law, and until

its decision is reversed for error by orderly review, either by

itself or by a higher court, its orders based on its decision are

to be respected.”   Celotex Corp. v. Edwards, 514 U.S. 300, 313

(1995) (quotation marks and citation omitted).

      When, on or about February 18, 1999, respondent complied

with the forfeiture order, the order had neither been vacated nor

had the decision to issue it been reversed.    Barring his

challenging the order under 21 U.S.C. sec. 853(c), respondent was

dutybound to comply.    Since he did not challenge it, and was

under no obligation to do so (see infra), he committed no error

in complying with the order.    Subsequently, the Court of Appeals

for the Eleventh Circuit vacated petitioner’s sentence and

remanded the case for resentencing but left the forfeiture order

intact, and the forfeiture order is not subject to collateral

attack in this court.    See Celotex Corp. v. Edwards, supra.    We

fail to see how Appeals abused its discretion in determining not

to give petitioner credit for funds received from petitioner (the

$2 million remittance) that respondent was forced to disgorge to
                              - 17 -

the Marshals Service pursuant to an order that he was bound to

obey.

     C.   Respondent’s Failure To Defend Against the Forfeiture
          Order

     Petitioner concedes that respondent failed to defend against

the forfeiture order pursuant to a hearing authorized by 21

U.S.C. sec. 853(n)(2).   Nevertheless, petitioner argues that,

when respondent received the $2 million remittance, respondent

was reasonably without cause to believe that the remittance was

subject to forfeiture.   Therefore, petitioner continues, since

the remittance was received in payment of petitioner’s tax debt,

respondent could have successfully defended against the

forfeiture order as a bona fide purchaser for value.   See 21

U.S.C. sec. 853(c), (n)(6)(B).5   Because respondent remained

silent when he could have spoken up, petitioner argues that

respondent should be barred from collecting the 1996 tax

liability (in petitioner’s words, “a second time”).    Respondent

answers that he could not have defended against the forfeiture

order since, when he received notice of it, he was without

standing to make a claim as a third party with a legal interest




     5
        We note that this argument implicitly acknowledges the
relation-back doctrine, since it assumes a transfer of property
to a third party after ownership of the property vests in the
United States. See 21 U.S.C. sec. 853(c).
                             - 18 -

in the $2 million remittance.6

     We need not decide whether respondent had standing to make a

claim pursuant to 21 U.S.C. sec. 853(c), (n)(6)(B).   Neither need

we decide whether a person receiving a payment in discharge of a

liability qualifies as a “purchaser” within the meaning of 21

U.S.C. sec. 853(c), (n)(6)(B).7   We need not decide those

questions because, even if we were to answer both questions in

the affirmative, petitioner cannot show that respondent was



     6
        Respondent claims that, in order for a tax debt to arise
to permit him to have any rights against the taxpayer and the
taxpayer’s property, he must first make an assessment of the tax
and then make a demand for payment. In support of that claim,
respondent points to secs. 6201 through 6203, 6321, 6322; secs.
301.6201-1 and 301.6203-1, Proced. & Admin. Regs.; and Capuano v.
United States, 955 F.2d 1427, 1432 (11th Cir. 1992). Here,
respondent states, assessment and demand followed by more than a
year his compliance with the forfeiture order. Petitioner’s
position is that, pursuant to sec. 6151, his tax debt for 1996
arose on Apr. 15, 1997, when payment thereof was due.
     7
        It is not settled whether, in using the term “bona fide
purchaser for value” in 21 U.S.C. secs. 853(c) and (n)(6)(B)
(emphasis added), Congress intended the term “purchaser” to
operate as a limitation on the class of persons that, having
engaged in arm’s-length transactions with the defendant, is
entitled to protection of its interests. The Court of Appeals
for the Fourth Circuit has determined that Congress did not
intend such a limitation. United States v. Reckmeyer, 836 F.2d
200, 208 (4th Cir. 1987) (“If the term ‘purchaser’ were so
construed, a car dealer who sold a car to a later convicted
defendant without knowledge of the potential forfeitability of
the defendant's assets could have the payment he received for the
car forfeited while a person who purchased otherwise forfeitable
stock from the defendant would be protected.”). Other Courts of
Appeals have not interpreted 21 U.S.C. sec. 853(c)(6)(B) so
liberally. See, e.g., United States v. BCCI Holdings
(Luxembourg), S.A., 46 F.3d 1185, 1191-1192 (D.C. Cir. 1995). We
shall await an appropriate opportunity to address the issue.
                              - 19 -

obligated to defend against the forfeiture order, and he has

failed to show the elements necessary to raise successfully

equitable estoppel as a defense to respondent’s efforts to

collect the 1996 tax liability.

     Title 21, U.S.C. sec. 853(n)(2), provides that any person,

“other than the defendant,” asserting a legal interest in

property that has been ordered forfeited “may” petition the

District Court for a hearing to adjudicate the validity of his

alleged interest in the property.   A third party, therefore, has

a right, not a duty, to petition the District Court,8 and it is

his interest, not the defendant’s, that is to be determined.

Indeed, the defendant has no interest in the forfeited property

and is prohibited even from petitioning the court.   Petitioner

has failed to suggest any other statutory provision that would

obligate respondent to defend against the forfeiture order and

makes no claim that respondent was under a contractual obligation

to do so.   Therefore, we find that respondent had no duty to

defend against the forfeiture order.

     Equitable estoppel is a judicial doctrine that precludes a

party from denying that party’s own acts or representations that

induce another to act to his or her detriment.   E.g., Graff v.



     8
        Nor has the Internal Revenue Service a duty to collect a
tax assessment from specific property in which it has a lien
rather than permitting the property to be forfeited. Raulerson
v. United States, 786 F.2d 1090, 1092-1093 (11th Cir. 1986).
                              - 20 -

Commissioner, 74 T.C. 743, 761 (1980), affd. 673 F.2d 784 (5th

Cir. 1982).   It is to be applied against the Commissioner only

with utmost caution and restraint.     E.g., Hofstetter v.

Commissioner, 98 T.C. 695, 700 (1992).    The essential elements of

estoppel are: (1) There must be a false representation or

wrongful misleading silence; (2) the error must be in a statement

of fact and not in an opinion or a statement of law; (3) the

person claiming the benefits of estoppel must be ignorant of the

true facts; and (4) he must be adversely affected by the acts or

statements of the person against whom estoppel is claimed.     E.g.,

Estate of Emerson v. Commissioner, 67 T.C. 612, 617-618 (1977);

see also Tefel v. Reno, 180 F.3d 1286, 1302 (11th Cir. 1999).

“Where an allegation of estoppel raises factual questions on

which reasonable minds might disagree, the questions must be

resolved at trial by the trier of fact.    * * *   However, where

the facts are not in dispute or are beyond dispute, the existence

of estoppel is a question of law.”     J.C. Wyckoff & Associates v.

Standard Fire Ins. Co., 936 F.2d 1474, 1493 (6th Cir. 1991).        See

generally 28 Am. Jur. 2d, Estoppel and Waiver, sec. 188 (2000).

Since there is no dispute here as to the relevant facts, we treat

petitioner’s claim of estoppel as raising only a question of law,

which we may dispose of with only brief discussion.

     Respondent made no false statement to petitioner, nor did

respondent’s silence (if we can call his failure to petition
                               - 21 -

silence) mislead petitioner.    Moreover, petitioner was not

ignorant of the forfeiture order, and petitioner has failed to

show that respondent had any duty to assist petitioner in

mitigating his losses with respect to his criminal offenses.

These are critical defects in petitioner’s estoppel defense.

      Respondent’s failure to petition the District Court does not

bar him from collecting the 1996 tax liability.

IV.   Conclusion

      We have concluded that, to the extent petitioner’s claim

constitutes a collateral attack on the forfeiture order, it must

be denied, and, further, respondent is not barred from collecting

the 1996 tax liability on account of his failure to petition the

District Court.    Appeals did not err in determining that

respondent was warranted in filing the notice of Federal tax

lien.   Therefore, as stated, respondent, not petitioner, is

entitled to summary judgment in his favor.

      To reflect the foregoing,



                                          An appropriate order and

                                     decision granting respondent’s

                                     motion for summary judgment,

                                     denying petitioner’s, and

                                     deciding for respondent will

                                     be entered.
