                                             PATRICIA A. MOOSALLY, PETITIONER v. COMMISSIONER
                                                     OF INTERNAL REVENUE, RESPONDENT

                                                      Docket No. 6539–12L.                     Filed March 27, 2014.

                                                  R rejected P’s OIC for P’s trust fund recovery penalties for
                                               the periods ending Mar. 31 and Sept. 30, 2000, and P’s income
                                               tax liability for her 2008 tax year. P appealed R’s rejection,
                                               and R assigned Appeals Officer S to review P’s OIC. R also
                                               filed an NFTL for P’s tax liabilities in issue and issued a
                                               Letter 3172. P requested a CDP hearing pursuant to I.R.C.
                                               sec. 6320, and R assigned Appeals Officer K to conduct P’s
                                               CDP hearing. After Appeals Officer S had initiated review of
                                               P’s OIC, R transferred P’s CDP case from Appeals Officer K
                                               to Appeals Officer S. Appeals Officer S sustained R’s rejection
                                               of P’s OIC and sustained R’s filing of the NFTL. P petitioned
                                               for review, contending that the CDP hearing was improper
                                               because Appeals Officer S was not an impartial officer pursu-
                                               ant to I.R.C. sec. 6320(b)(3). Held: Appeals Officer S was not
                                               an impartial officer pursuant to I.R.C. sec. 6320(b)(3) and sec.
                                               301.6320–1(d)(2), Proced. & Admin. Regs. Held, further, P is
                                               entitled to a new CDP hearing before an impartial Appeals
                                               Officer.

                                           Michael E. Breslin, for petitioner.
                                           Marissa J. Savit, for respondent.
                                        WELLS, Judge: Petitioner seeks review, pursuant to section
                                     6320, of respondent’s determination to proceed with collec-
                                     tion of petitioner’s unpaid trust fund recovery penalty liabil-
                                     ities for periods ending March 31 and September 30, 2000,
                                     and also petitioner’s Federal income tax liability for her 2008
                                     tax year. 1 The issues we have been asked to decide are: (1)
                                     whether the Internal Revenue Service (IRS) Appeals Office
                                     settlement officer to whom petitioner’s case and hearing were
                                     assigned was an impartial officer pursuant to section
                                           1 Unless
                                                  otherwise indicated, section and Internal Revenue Code ref-
                                     erences are to the Internal Revenue Code of 1986, as amended and in ef-
                                     fect at all relevant times, and Rule references are to the Tax Court Rules
                                     of Practice and Procedure.

                                                                                                                                  183




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                                     184                 142 UNITED STATES TAX COURT REPORTS                                    (183)


                                     6320(b)(3), and (2) if she was an impartial officer, whether
                                     respondent may proceed with collection of petitioner’s unpaid
                                     tax liabilities in issue.

                                                                          FINDINGS OF FACT

                                        Some of the facts and certain exhibits have been stipu-
                                     lated. The parties’ stipulated facts and the attached exhibits
                                     are incorporated in this Opinion by reference and are found
                                     accordingly. At the time of filing the petition, petitioner
                                     resided in Ohio.
                                        On November 29, 2001, petitioner signed Form 2751, Pro-
                                     posed Assessment of Trust Fund Recovery Penalty, and con-
                                     sented to the assessment and collection of trust fund
                                     recovery penalties (TFRPs) pursuant to section 6672 of
                                     $22,789.42 for the period ending March 31, 2000, and of
                                     $14,859.16 for the period ending September 30, 2000. On
                                     March 18, 2002, respondent assessed against petitioner
                                     TFRPs in the amounts listed above.
                                        Additionally, with respect to petitioner’s 2008 tax year,
                                     respondent sent to petitioner, on December 7, 2009, Notice
                                     CP2000 proposing an increase in petitioner’s Federal income
                                     tax of $2,150. After receiving the Notice CP2000, petitioner
                                     filed a Form 1040X, Amended U.S. Individual Income Tax
                                     Return, reporting the previously undeclared income for her
                                     2008 tax year. On March 23, 2010, respondent assessed
                                     against petitioner the $2,150 tax increase for her 2008 tax
                                     year.
                                        On June 21, 2010, petitioner submitted to respondent a
                                     completed Form 656, Offer in Compromise (OIC), with
                                     attached Form 433–A, Collection Information Statement for
                                     Wage Earners and Self-Employed Individuals, proposing to
                                     compromise for $200 her unpaid tax liabilities arising out of
                                     TFRPs assessed against her for the tax periods ending March
                                     31 and September 30, 2000. Petitioner requested that her
                                     OIC be accepted under ‘‘doubt as to collectibility’’ criteria and
                                     claimed that she had insufficient assets and income to pay
                                     the full amount owed.
                                        On March 12, 2011, the IRS Centralized OIC Unit (COIC
                                     Unit) sent petitioner a letter confirming receipt of her OIC.
                                     From March to May 2011, acting through letters and tele-
                                     phone calls, the COIC Unit requested and petitioner provided




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                                     (183)                         MOOSALLY v. COMMISSIONER                                       185


                                     additional information, substantiation, and explanation of
                                     the representations that petitioner set forth on her OIC and
                                     Form 433–A. At a point during their communication, the
                                     COIC Unit and petitioner discussed petitioner’s unpaid
                                     income tax liability for her 2008 tax year and included that
                                     liability among the outstanding amounts that petitioner was
                                     seeking to settle through her OIC. On May 31, 2011,
                                     respondent rejected petitioner’s OIC because the COIC Unit
                                     calculated petitioner’s reasonable collection potential to be
                                     $34,497.88. The COIC Unit also recommended that
                                     respondent file a notice of Federal tax lien (NFTL) with
                                     respect to petitioner’s unpaid tax liabilities.
                                        On June 28, 2011, petitioner appealed to the Appeals
                                     Office the rejection of her OIC, listing her income tax
                                     liability for her 2008 tax year in addition to the TFRPs for
                                     the periods ending March 31 and September 30, 2000, as the
                                     liabilities and tax periods involved with the appeal (periods
                                     in issue). Petitioner also sent the Appeals Office a letter with
                                     additional documents and information to support her OIC
                                     and to inform the Appeals Office that her circumstances had
                                     changed and that she had lost her job. The Appeals Office
                                     confirmed receipt of petitioner’s appeal of her rejected OIC
                                     and informed petitioner that Settlement Officer Barbara
                                     Smeck had been assigned to her case.
                                        On July 12, 2011, respondent filed an NFTL for the
                                     periods in issue and mailed to petitioner a Letter 3172,
                                     Notice of Federal Tax Lien Filing and Your Right to a
                                     Hearing Under IRC 6320. The Letter 3172 informed her that
                                     she had a right to a collection due process (CDP) hearing and
                                     that she had to request a CDP hearing by August 18, 2011.
                                     Petitioner submitted a Form 12153, Request for a Collection
                                     Due Process or Equivalent Hearing, on July 27, 2011, to
                                     request a CDP hearing with respect to her unpaid tax liabil-
                                     ities for the periods in issue. On Form 12153, petitioner
                                     requested that the Appeals Office discuss collection alter-
                                     natives and withdraw the NFTL. Settlement Officer Donna
                                     Kane was assigned to review petitioner’s case and to provide
                                     her with her CDP hearing.
                                        Ms. Smeck sent petitioner a letter on August 25, 2011,
                                     requesting that she submit, by September 26, 2011, addi-
                                     tional financial information and substantiation, as well as an
                                     updated Form 433–A. Petitioner responded to Ms. Smeck’s




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                                     186                 142 UNITED STATES TAX COURT REPORTS                                    (183)


                                     request on September 25, 2011, and provided her with finan-
                                     cial information and some of the other requested documents.
                                     Petitioner later sent to Ms. Smeck additional documentation
                                     to support her OIC.
                                        On September 29, 2011, Ms. Kane informed petitioner that
                                     her CDP case and hearing would be reassigned because peti-
                                     tioner had already submitted an OIC that was under consid-
                                     eration. Petitioner’s CDP case and hearing request were
                                     transferred from Ms. Kane to Ms. Smeck, who was at that
                                     time reviewing petitioner’s appeal of her rejected OIC.
                                        During November 2011, Ms. Smeck reviewed petitioner’s
                                     rejected OIC and the financial information she had sub-
                                     mitted and also called petitioner to discuss her issues with
                                     her CDP hearing and the option of placing her account in
                                     ‘‘currently not collectible’’ status.
                                        On February 7, 2012, respondent issued two Notices of
                                     Determination Concerning Collection Action(s) Under Section
                                     6320 and/or 6330 (notices of determination), one with respect
                                     to petitioner’s income tax liability for her 2008 tax year and
                                     the other with respect to the TFRPs for the periods ending
                                     March 31 and September 30, 2000. In the notices of deter-
                                     mination, respondent sustained the filing of the NFTL and
                                     the rejection of petitioner’s OIC for the periods in issue. On
                                     March 9, 2012, petitioner timely petitioned this Court for
                                     review of respondent’s notices of determination.

                                                                                  OPINION

                                       Pursuant to section 6321, the Federal Government obtains
                                     a lien against ‘‘all property and rights to property, whether
                                     real or personal’’ of any person liable for Federal tax upon
                                     demand for payment and failure to pay. See Iannone v.
                                     Commissioner, 122 T.C. 287, 293 (2004). However, section
                                     6320(a)(1) requires the Commissioner to give a taxpayer
                                     written notice of the filing of a notice of Federal tax lien
                                     upon that taxpayer’s property. The notice of filing must
                                     inform the taxpayer of the right to request a hearing in the
                                     Commissioner’s Appeals Office. 2 Sec. 6320(a)(3)(B), (b)(1).
                                       2 Respondent made petitioner aware of her right to a CDP hearing when

                                     he sent petitioner the Letter 3172 on July 12, 2011. Petitioner properly re-
                                     quested a CDP hearing by submitting a Form 12153 on July 27, 2011.




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                                     (183)                         MOOSALLY v. COMMISSIONER                                       187


                                        Section 6330(c), (d) (other than paragraph (2)(B) thereof ),
                                     and (e) governs the conduct of a hearing requested under sec-
                                     tion 6320. Sec. 6320(c). At the hearing, the taxpayer may
                                     raise any relevant issues including appropriate spousal
                                     defenses, challenges to the appropriateness of collection
                                     actions, and collection alternatives. Sec. 6330(c)(2)(A). The
                                     taxpayer may challenge the underlying tax liability at the
                                     hearing only if the taxpayer did not receive a statutory notice
                                     of deficiency or otherwise have an opportunity to dispute the
                                     tax liability. Sec. 6330(c)(2)(B). In addition to considering
                                     issues raised by the taxpayer under section 6330(c)(2), the
                                     Appeals Office must also verify that the requirements of any
                                     applicable law or administrative procedure have been met.
                                     Sec. 6330(c)(1), (3).
                                        If a taxpayer requests a hearing in response to an NFTL
                                     pursuant to section 6320, a hearing must be conducted by an
                                     impartial officer or employee of the Appeals Office. 3 Sec.
                                     6320(b)(1), (3). An impartial officer or employee is one who
                                     has had no prior involvement with respect to the unpaid tax
                                     specified in section 6320(a)(3)(A) before the first hearing
                                     under section 6320 or section 6330. Id. Although the Internal
                                     Revenue Code does not define the term ‘‘no prior involve-
                                     ment’’, see Harrell v. Commissioner, T.C. Memo. 2003–271,
                                     2003 WL 22137919, at *7, the Commissioner has promul-
                                     gated regulations interpreting that term. Section 301.6320–
                                     1(d)(2), A–D4, Proced. & Admin. Regs., provides: ‘‘Prior
                                     involvement by an Appeals officer or employee includes
                                     participation or involvement in a matter (other than a CDP
                                     hearing held under either section 6320 or section 6330) that
                                     the taxpayer may have had with respect to the tax and tax
                                     period shown on the CDP Notice.’’ 4
                                       3 Pursuant to sec. 6320(b)(3), a taxpayer may waive the impartial officer

                                     requirement. See also sec. 301.6320–1(d)(2), A–D5, Proced. & Admin. Regs.
                                     In the instant case, the administrative record does not contain a completed
                                     and signed Form 14041, Waiver for Right to Request a New Settlement/
                                     Appeals Officer Under Section 6320 and/or 6330, and petitioner asserts
                                     that she did not sign any such waiver. Moreover, respondent does not con-
                                     tend that petitioner waived the requirements of sec. 6320(b)(3). See Rules
                                     40, 331(b). Accordingly, we conclude that petitioner has not waived the sec.
                                     6320(b)(3) impartial officer requirement.
                                       4 Sec. 301.6320–1(d)(2), A–D4, Proced. & Admin. Regs., also provides

                                     that ‘‘[p]rior involvement exists only when the taxpayer, the tax and the
                                                                                                      Continued




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                                     188                 142 UNITED STATES TAX COURT REPORTS                                    (183)


                                        Petitioner contends that Ms. Smeck was not an impartial
                                     officer because she reviewed petitioner’s appeal of her
                                     rejected OIC for the periods in issue before conducting peti-
                                     tioner’s CDP hearing for the same periods in issue. Petitioner
                                     contends that the CDP hearing was improper pursuant to
                                     section 6320(b)(3) and requests that we remand her case to
                                     the Appeals Office to properly reconsider the NFTL and peti-
                                     tioner’s collection alternatives. Respondent, on the other
                                     hand, contends that Ms. Smeck was an impartial officer
                                     because she had not yet issued a determination and that
                                     there is no ‘‘prior’’ involvement when a reviewing officer has
                                     not made any determination with respect to the previously
                                     rejected OIC. Moreover, respondent contends that section
                                     6320 contemplates simultaneous review of all issues related
                                     to collections during the CDP hearing and that a simulta-
                                     neous review benefits taxpayers. 5
                                        In support of her contention, petitioner cites Cox v.
                                     Commissioner, 514 F.3d 1119 (10th Cir. 2008), rev’g 126 T.C.
                                     237 (2006). Respondent contends Cox involved facts different
                                     from those before us. We agree with respondent that the
                                     facts of Cox are distinguishable. In Cox the taxpayers
                                     requested a CDP hearing regarding a proposed levy pursuant

                                     tax period at issue in the CDP hearing also were at issue in the prior non-
                                     CDP matter, and the Appeals officer or employee actually participated in
                                     the prior matter.’’ We note, however, that at least one Federal court has
                                     stated that the provision is invalid. See Cox v. Commissioner, 514 F.3d
                                     1119, 1127 n.10 (10th Cir. 2008), rev’g 126 T.C. 237 (2006). We also note
                                     that the provision does not affect the instant case, which, as we explain
                                     below, involves a taxpayer, tax, and tax periods that were at issue in both
                                     the CDP hearing and a prior non-CDP proceeding and an Appeals officer
                                     that participated in both matters.
                                       5 Petitioner also claims that ‘‘Ms. Smeck’s mind was already made up,’’

                                     and each party claims that the other was disagreeable or uncooperative
                                     and acted in bad faith. We have previously suggested that sec. 6320(b)(3)
                                     does not entail a challenge to the objectivity of the officer who presides
                                     over the CDP hearing. See Criner v. Commissioner, T.C. Memo. 2003–328,
                                     2003 WL 22843085, at *9. We have, however, examined the issue of officer
                                     prejudice in some instances. See, e.g., Cox v. Commissioner, 126 T.C. at
                                     253–254; Criner v. Commissioner, 2003 WL 22843085, at *9. Because we
                                     conclude that Ms. Smeck was not an impartial officer pursuant to sec.
                                     6320(b)(3) because of her prior involvement with petitioner’s OIC for the
                                     same taxes and periods in issue, it is unnecessary to reach the question
                                     of Ms. Smeck’s alleged prejudice or bias, and we do not further address
                                     that issue.




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                                     (183)                         MOOSALLY v. COMMISSIONER                                       189


                                     to section 6330 for unpaid tax liabilities relating to their
                                     2000 tax year. Id. at 1121. The Appeals officer assigned to
                                     the taxpayers’ case then informed the taxpayers that they
                                     would need to file all outstanding tax returns to be consid-
                                     ered for collection alternatives. Id. The taxpayers ultimately
                                     submitted tax returns for their 2001 and 2002 tax years
                                     without paying the corresponding tax liabilities. Id. at 1121–
                                     1122. The Appeals officer reviewed the information provided,
                                     including the 2001 and 2002 tax returns, and observed that
                                     ‘‘the taxpayers reported a 2002 tax liability of $146,460 but
                                     made only $1,000 in estimated payments, notwithstanding
                                     the fact that they earned almost $100,000 in net income
                                     during the first seven months of 2003.’’ Id. at 1122. On the
                                     basis of that observation, the Appeals officer concluded that
                                     the taxpayers could make payments toward their outstanding
                                     tax liability, determined that the taxpayers were not eligible
                                     for the collection alternative, and issued a notice of deter-
                                     mination sustaining the proposed levy. Id. Meanwhile, the
                                     Commissioner issued another notice of intent to levy for the
                                     taxpayers’ unpaid tax liabilities for their 2001 and 2002 tax
                                     years. Id. The taxpayers requested another CDP hearing to
                                     discuss the levy relating to their 2001 and 2002 tax liabil-
                                     ities, and the Commissioner assigned the same Appeals
                                     officer to their case. Id. Again, the Appeals officer concluded
                                     that the taxpayers did not qualify for a collection alternative
                                     and that the proposed levy was appropriate. Id. This Court
                                     had concluded that the officer’s consideration of the tax-
                                     payers’ 2001 and 2002 tax returns during their CDP hearing
                                     for their 2000 tax liability did not constitute ‘‘prior involve-
                                     ment’’ that would disqualify the Appeals officer from han-
                                     dling the taxpayers’ CDP hearing related to their 2001 and
                                     2002 tax liabilities. Cox v. Commissioner, 126 T.C. at 252–
                                     253. In doing so, we had relied on two rationales. Id. at 252.
                                     Our first rationale was that the regulations indicated that
                                     prior involvement ‘‘does not arise where consideration of
                                     later years was peripheral to a proceeding the subject of
                                     which was an earlier year or years’’ and was not the subject
                                     of, i.e., was not directly in dispute in, a proceeding before the
                                     Commissioner. Id. Secondly, we concluded that, because the
                                     law permits multiple CDP hearings with respect to a given
                                     period to be conducted by the same officer when that period
                                     is the subject of multiple notices pursuant to sections 6320




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                                     190                 142 UNITED STATES TAX COURT REPORTS                                    (183)


                                     and/or 6330, there was no greater or different harm where
                                     ‘‘a period is first considered informally in the course of one
                                     collection proceeding initiated regarding another period and
                                     then becomes the direct subject of a subsequent proceeding.’’
                                     Id. In a divided opinion, the U.S. Court of Appeals for the
                                     Tenth Circuit reversed our decision and found that the no-
                                     prior-involvement requirement was a broad restriction that
                                     should not be limited to involvement in a prior hearing or
                                     administrative matter but should include any ‘‘substantive
                                     and material involvement with a taxpayer’s liability, regard-
                                     less of whether the liability is the liability currently under
                                     official review by the Appeals Officer.’’ Cox v. Commissioner,
                                     514 F.3d at 1125, 1127–1128.
                                        As we noted above, the Tax Court in Cox determined that
                                     there was no violation of the impartial officer requirement
                                     because (1) the officer’s prior involvement was only periph-
                                     eral to, and not the subject of or directly in dispute in, a pro-
                                     ceeding before the Court, and (2) there was no greater or dif-
                                     ferent harm where both the officer’s prior involvement and
                                     current consideration were in the context of a CDP hearing.
                                     Cox v. Commissioner, 126 T.C. at 252. In the instant case,
                                     Ms. Smeck’s involvement with petitioner’s appeal of her
                                     rejected OIC was not simply peripheral to an ongoing pro-
                                     ceeding but instead was the subject of a separate administra-
                                     tive proceeding. Additionally, Ms. Smeck reviewed the same
                                     tax periods, i.e., the periods in issue, for both the OIC appeal
                                     and the CDP hearing, unlike the officer in Cox, where the
                                     officer’s prior involvement occurred during the review of a
                                     different tax period. Moreover, Ms. Smeck’s prior involve-
                                     ment occurred during her handling of an OIC appeal, not a
                                     previous CDP hearing. Accordingly, the facts before us are
                                     different from those encountered in Cox and, therefore, the
                                     Tax Court’s holding in Cox does not require the same result
                                     in the instant case.
                                        Respondent also contends that the Court of Appeals’
                                     holding in Cox is not precedential for the instant case, which
                                     is appealable to the U.S. Court of Appeals for the Sixth Cir-
                                     cuit. 6 Respondent is correct that we follow a Court of
                                       6 Golsen v. Commissioner, 54 T.C. 742, 757 (1970), aff ’d, 445 F.2d 985

                                     (10th Cir. 1971), established the rule that this Court will ‘‘follow a Court
                                     of Appeals decision which is squarely in point where appeal from our deci-




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                                     (183)                         MOOSALLY v. COMMISSIONER                                       191


                                     Appeals’ decision where appeal lies to that Court of Appeals
                                     and, therefore, it does not follow under the Golsen rule that
                                     we apply the Court of Appeals’ holding in Cox in the instant
                                     case. 7
                                        As the instant case is distinguishable from Cox, we next
                                     address whether the facts before us indicate prior involve-
                                     ment. Ms. Smeck reviewed petitioner’s appeal of her rejected
                                     OIC for the periods in issue for nearly three months before
                                     petitioner’s CDP hearing for the same periods in issue was
                                     also transferred to her. During those three months, Ms.
                                     Smeck requested from petitioner and evaluated various docu-
                                     ments, forms, and other financial information to calculate
                                     petitioner’s reasonable collection potential and evaluate peti-
                                     tioner’s rejected OIC. Accordingly, through her review of peti-
                                     tioner’s rejected OIC, 8 Ms. Smeck had prior involvement
                                     with petitioner’s unpaid tax liabilities for the periods in issue
                                     before she was assigned to handle petitioner’s CDP hearing
                                     for the same taxes and periods in issue. Consequently, we
                                     sion lies to that Court of Appeals’’ (the Golsen rule).
                                        7 Pursuant to Golsen v. Commissioner, 54 T.C. at 757, we would apply

                                     the Court of Appeals’ holding in Cox to future cases arising in the Tenth
                                     Circuit if the facts were squarely in point with those encountered in Cox.
                                     See Lardas v. Commissioner, 99 T.C. 490, 493–495 (1992). For clarity, we
                                     note that we have not decided whether we will apply the Tenth Circuit
                                     Court of Appeals’ analysis to facts similar to those in Cox arising in cases
                                     appealable in circuits other than the Tenth Circuit or instead continue to
                                     follow the standard and rationale set forth in our Opinion in that case. We
                                     find no need to confront that issue in the instant case because we would
                                     reach the same conclusion whether we apply our rationale set forth in our
                                     Opinion in Cox or the ‘‘broad restriction’’ standard set forth in the Court
                                     of Appeals’ opinion in Cox. Accordingly, our conclusions in the instant case
                                     do not conflict with the rationale and conclusion set forth in our Opinion
                                     in Cox.
                                        8 Although the record is unclear as to whether petitioner submitted a for-

                                     mal OIC for the periods in issue or only for the periods ending March 31
                                     and September 30, 2000, we find that the parties informally included her
                                     unpaid tax liability for her 2008 tax year in her OIC through the course
                                     of their interaction. The issue of whether there is an enforceable OIC with
                                     respect to all of the periods in issue is separate and distinct from whether
                                     an officer’s review of that OIC is prior involvement pursuant to sec.
                                     301.6320–1(d), Proced. & Admin. Regs. Because the record is clear that
                                     Ms. Smeck at least informally reviewed petitioner’s 2008 tax return and
                                     liability during petitioner’s OIC appeal, we conclude that Ms. Smeck’s
                                     prior involvement covered the periods in issue and make no conclusion re-
                                     garding the enforceability of petitioner’s OIC.




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                                     192                 142 UNITED STATES TAX COURT REPORTS                                    (183)


                                     hold that, pursuant to section 301.6320–1(d)(2), Proced. &
                                     Admin. Regs., Ms. Smeck is not an impartial officer pursuant
                                     to section 6320(b)(3) and petitioner is entitled to a new CDP
                                     hearing before an impartial officer.
                                        Respondent contends that Ms. Smeck was an impartial
                                     officer because she had not yet issued a determination
                                     regarding petitioner’s rejected OIC and that there is ‘‘cur-
                                     rent’’ involvement, but no ‘‘prior’’ involvement, when an
                                     officer has not made any determination regarding a rejected
                                     OIC. We disagree. The regulations plainly prohibit ‘‘prior
                                     involvement’’ and do not specify that the involvement must
                                     culminate in the issuance of a determination of any sort. See
                                     generally sec. 301.6320–1(d), Proced. & Admin. Regs. Accord-
                                     ingly, we conclude that Ms. Smeck’s participation in peti-
                                     tioner’s OIC appeal constituted ‘‘prior involvement’’ even
                                     though she did not issue a determination with regard to the
                                     rejected OIC before handling petitioner’s CDP hearing.
                                        Additionally, respondent contends that section 6320 con-
                                     templates simultaneous review of all issues related to collec-
                                     tions during the CDP hearing and that all collection matters
                                     may be handled by the same officer. Respondent relies on
                                     three main sources of support for that contention.
                                        Respondent first cites section 301.6320–1(d)(1), Proced. &
                                     Admin. Regs., which states that ‘‘the CDP hearing requested
                                     under section 6320 will be held in conjunction with any CDP
                                     hearing the taxpayer requests under section 6330.’’ We dis-
                                     agree with respondent’s application of section 301.6320–
                                     1(d)(1), Proced. & Admin. Regs., to the facts of the instant
                                     case. That regulation contemplates a situation in which a
                                     taxpayer requests a lien CDP hearing pursuant to section
                                     6320 and, separately, a pre-levy CDP hearing pursuant to
                                     section 6330; in those circumstances, the cited regulation
                                     provides that the requested CDP hearings may be combined.
                                     Sec. 301.6320–1(d)(1), Proced. & Admin. Regs. As we read
                                     the legislative history, Congress contemplated one situation
                                     where an Appeals officer with prior involvement with respect
                                     to the unpaid liability specified in the taxpayer’s case may
                                     combine a separate CDP hearing, i.e., where it involves a
                                     pre-levy CDP hearing pursuant to section 6330 and a lien
                                     CDP hearing pursuant to section 6320 regarding the same
                                     unpaid liability. H.R. Conf. Rept. No. 105–599, at 266 (1998),
                                     1998–3 C.B. 747, 1020. In that legislative history, Congress




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                                     (183)                         MOOSALLY v. COMMISSIONER                                       193


                                     did not contemplate any additional exceptions that might be
                                     allowed. Id. 9 Additionally, we note that the applicable regu-
                                     lations state that ‘‘[t]o the extent practicable, a CDP hearing
                                     under section 6320 will be held in conjunction with a CDP
                                     hearing under section 6330’’. Sec. 301.6320–1(d)(2), A–D3,
                                     Proced. & Admin. Regs. (emphasis added). Although that
                                     provision might suggest that a lien CDP hearing pursuant to
                                     section 6320 may be combined, when practicable, with
                                     another lien CDP hearing or that a pre-levy CDP hearing
                                     pursuant to section 6330 may be combined with another pre-
                                     levy CDP hearing, see, e.g., Frey v. Commissioner, T.C.
                                     Memo. 2004–87; Israel v. Commissioner, T.C. Memo. 2003–
                                     198, aff ’d, 88 Fed. Appx. 941 (7th Cir. 2004), we do not con-
                                     sider that provision to allow the combination of CDP
                                     hearings with non-CDP matters, such as the OIC rejection
                                     appeal involved in the instant case. Ms. Smeck began han-
                                     dling petitioner’s non-CDP appeal of her rejected OIC before
                                     she was later assigned petitioner’s CDP hearing. On the
                                     basis of the foregoing legislative history, we conclude that
                                     the regulations respondent cites do not apply in the instant
                                     case.
                                        Secondly, respondent relies upon Gravette v. Commissioner,
                                     T.C. Memo. 2011–138, 2011 WL 2490647, for the proposition
                                     that there is no prior involvement where the same Appeals
                                     officer handles both a taxpayer’s CDP hearing and OIC rejec-
                                     tion appeal. We do not agree with respondent’s interpretation
                                     of Gravette. In Gravette the taxpayer completed an OIC as a
                                     collection alternative to be considered during the course of a
                                     CDP hearing that had been requested by the taxpayer and
                                     that had commenced before the submission of the OIC. Id.,
                                     2011 WL 2490647, at *2. Although the OIC was forwarded
                                       9 In our Opinion in Cox v. Commissioner, 126 T.C. at 250, we referred

                                     to this same legislative history for the proposition that ‘‘both the statutory
                                     and the regulatory language suggest a relatively permissive standard
                                     under which participation in earlier collection proceedings would not con-
                                     stitute disqualifying prior involvement for purposes of section 6320 or
                                     6330.’’ We do not opine on whether the legislative history supports a per-
                                     missive standard or whether we will continue to apply a permissive stand-
                                     ard to situations similar to Cox that involve two CDP matters. However,
                                     we conclude that the flexibility contemplated by Congress and provided in
                                     sec. 301.6320–1(d)(1), Proced. & Admin. Regs., as plainly stated in the reg-
                                     ulation, applies only to situations involving two or more CDP matters.




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                                     to an offer examiner for initial review, rejected by that exam-
                                     iner, and then appealed for review by the Appeals officer
                                     handling the CDP hearing, id. at *2–*3, this Court found
                                     that there was no prior involvement because the Appeals
                                     officer’s participation in the OIC review was entirely
                                     within the context of the CDP hearing, id. at *6. Section
                                     6330(c)(2)(A)(iii) specifically provides that the CDP hearing
                                     issues may include, among other matters, an offer-in-com-
                                     promise. In the instant case, unlike the Appeals officer in
                                     Gravette, Ms. Smeck initiated her review of petitioner’s
                                     rejected OIC before she was assigned to handle petitioner’s
                                     CDP hearing. Unlike the OIC appeal taxpayer in Gravette,
                                     petitioner’s OIC appeal was an administrative proceeding
                                     that was separate from the CDP hearing. Accordingly, we
                                     conclude that Gravette is inapplicable to the facts before
                                     us. 10
                                        Thirdly, respondent contends that the purpose of section
                                     6320(b)(3) is to prevent an Appeals officer from examining a
                                     taxpayer’s underlying liability during the examination func-
                                     tion and then handling a CDP hearing involving the same
                                     liability during the enforcement function, because the offi-
                                     cer’s evaluation of the liability might bias his or her deter-
                                     mination of whether the unpaid liability is collectible. How-
                                     ever, respondent explains, the bias is not present where the
                                     officer is faced solely with the question of whether the tax is
                                     collectible, i.e., whether the taxpayer is able to pay out-
                                     standing liabilities, and therefore, that Ms. Smeck’s concur-
                                     rent handling of petitioner’s rejected OIC and CDP hearing
                                     does not run afoul of the section 6320(b)(3) prohibition
                                     against prior involvement because both matters involved an
                                     evaluation of petitioner’s ability to pay the unpaid tax liabil-
                                     ities for the periods in issue. We disagree with respondent’s
                                     contention. It is well established that ‘‘in the absence of a
                                     ‘clearly expressed legislative intention to the contrary’, the
                                     language of the statute itself ‘must ordinarily be regarded as
                                        10 We note that respondent could have transferred petitioner’s OIC ap-

                                     peal from Ms. Smeck to Ms. Kane, which would have ensured that peti-
                                     tioner’s OIC was reviewed pursuant to the specific authority to do so pur-
                                     suant to sec. 6330(c)(2)(A)(iii) during the course of her CDP hearing with
                                     Ms. Kane, who would not have had any ‘‘prior involvement’’ with peti-
                                     tioner’s unpaid tax liabilities for the periods in issue outside the context
                                     of the CDP hearing.




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                                     (183)                         MOOSALLY v. COMMISSIONER                                       195


                                     conclusive’.’’ Burlington N. R.R. Co. v. Okla. Tax Comm’n,
                                     481 U.S. 454, 461 (1987) (quoting United States v. James,
                                     478 U.S. 597, 606 (1986)). An agency may not read ambiguity
                                     into a statute in order to reach a practical result. See Joint
                                     Admin. Comm. of Plumbing & Pipefitting Indus. in Detroit
                                     Area v. Washington Grp. Int’l, 568 F.3d 626, 632 (6th Cir.
                                     2009) (‘‘[A]gencies have no authority to modify a statute’s
                                     unambiguous meaning[.]’’); Patterson Trust v. United States,
                                     729 F.2d 1089, 1095 (6th Cir. 1984) (‘‘[T]he agency may not
                                     so interpret the statute as to controvert its plain and
                                     unambiguous language[.]’’); see also Harris v. Olszewski, 442
                                     F.3d 456, 466 (6th Cir. 2006) (‘‘ ‘[T]he court, as well as the
                                     agency, must give effect to the unambiguously expressed
                                     intent of Congress.’ ’’ (quoting Chevron, U.S.A., Inc. v. Nat-
                                     ural Res. Def. Council, Inc., 467 U.S. 837, 842–843 (1984))).
                                     In the instant case, the statute clearly provides that the
                                     officer handling the CDP hearing shall have had no prior
                                     involvement with respect to the unpaid tax liabilities in
                                     issue. See sec. 6320(b)(3). Although Congress intended an
                                     exception to the section 6320(b)(3) restriction where a tax-
                                     payer requests a lien CDP hearing pursuant to section 6320
                                     and a pre-levy CDP hearing pursuant to section 6330, it did
                                     not provide for or express an exception for all matters con-
                                     cerning the taxpayer’s ability to pay. See H.R. Conf. Rept.
                                     No. 105–599, supra at 266, 1998–3 C.B. at 1020. Moreover,
                                     when the relevant regulations covering section 6320(b)(3)
                                     were amended in 2006, the Department of the Treasury
                                     sought, inter alia, ‘‘to eliminate the potential interpretation
                                     that there is a distinction between liability and collection
                                     issues in determining prior involvement.’’ T.D. 9290, 2006–2
                                     C.B. 879, 881. Accordingly, we conclude that section
                                     6320(b)(3) does not contemplate a permissive interpretation
                                     excepting all matters concerning the taxpayer’s ability to
                                     pay.
                                        Respondent also contends that taxpayers benefit from com-
                                     bining appeals of rejected OICs with CDP hearings because
                                     it would allow for judicial review of an OIC submitted out-
                                     side the context of a CDP hearing. There is no question that
                                     this Court is a court of limited jurisdiction. See Logan v.
                                     Commissioner, 86 T.C. 1222, 1226 (1986). Our jurisdiction is
                                     precisely circumscribed by statute, and we may not enlarge
                                     upon that statutory jurisdiction. Sec. 7442; Logan v. Commis-




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                                     196                 142 UNITED STATES TAX COURT REPORTS                                    (183)


                                     sioner, 86 T.C. at 1226; see also Naftel v. Commissioner, 85
                                     T.C. 527, 529 (1985). Currently, our jurisdiction to review
                                     rejection of a taxpayer’s OIC is limited to situations in which
                                     the taxpayer submits an OIC as a collection alternative
                                     during the course of a CDP hearing pursuant to section
                                     6330(c)(2)(A)(iii), receives a notice of determination as a
                                     result of that CDP hearing, and then petitions this Court for
                                     review of that determination pursuant to section 6330(d)(1).
                                     Respondent, in effect, is asking us to legislate changes in the
                                     statute as enacted by Congress to expand the scope of this
                                     Court’s jurisdiction. The power to legislate is exclusively the
                                     power of Congress and not of this Court. See Iselin v. United
                                     States, 270 U.S. 245, 250–251 (1926). The Court may not
                                     ‘‘ ‘revise the language of the statute as interpreted by the
                                     Treasury to achieve what might be perceived to be better tax
                                     policy ’.’’ FleetBoston Fin. Corp. v. United States, 68 Fed. Cl.
                                     177, 188 (2005) (quoting Marsh & McLennan Cos. v. United
                                     States, 302 F.3d 1369, 1381 (Fed. Cir. 2002)). While
                                     respondent may perceive the result to be harsh, we cannot
                                     ignore the plain language of the statute, and in effect,
                                     rewrite the statute to achieve what respondent concludes
                                     may be a more equitable result. Eanes v. Commissioner, 85
                                     T.C. 168, 171 (1985); see also Badaracco v. Commissioner,
                                     464 U.S. 386, 398 (1984) (‘‘Courts are not authorized to
                                     rewrite a statute because they might deem its effects suscep-
                                     tible of improvement.’’). 11
                                          On the basis of the record before us, we conclude that Ms.
                                     Smeck’s review of petitioner’s rejected OIC for her unpaid tax
                                     liabilities for the periods in issue constituted ‘‘prior involve-
                                     ment’’ pursuant to section 301.6320–1(d)(2), A–D4, Proced. &
                                     Admin. Regs. Accordingly, we hold that Ms. Smeck was not
                                     an impartial officer pursuant to section 6320(b)(3) and that
                                     respondent did not fulfill his statutory duty to provide peti-
                                     tioner with a ‘‘fair’’ CDP hearing pursuant to section 6320(b).
                                     Consequently, petitioner is entitled to a new CDP hearing
                                     before an impartial Appeals officer in accordance with section
                                     6320(b) and we will, therefore, exercise our discretion to
                                       11 Moreover, we note that, even if respondent were correct that taxpayers

                                     benefit from judicial review of an OIC submitted outside the CDP context,
                                     we are in no position in the instant case to evaluate whether that benefit
                                     would be greater than the benefit of an independent review of a taxpayer’s
                                     collection alternatives by an impartial officer pursuant to sec. 6320(b)(3).




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                                     (183)                         MOOSALLY v. COMMISSIONER                                       197


                                     remand the instant proceedings to the Appeals Office for that
                                     purpose. On the basis of the foregoing, we need not address
                                     at this time the issue of whether respondent may proceed
                                     with collection of petitioner’s unpaid tax liabilities for the
                                     periods in issue.
                                        In reaching these holdings, we have considered all the par-
                                     ties’ arguments, and, to the extent not addressed herein, we
                                     conclude that they are moot, irrelevant, or without merit.
                                        To reflect the foregoing,
                                                                                 An appropriate order will be issued.

                                                                               f




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