 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 1, 2015                   Decided August 14, 2015

                        No. 14-1042

                       JOHN RYSKAMP,
                         APPELLANT

                              v.

      COMMISSIONER OF INTERNAL REVENUE SERVICE,
                      APPELLEE


          On Appeal from the Order and Decision
              of the United States Tax Court


    Jeremy C. Baron, appointed by the court, argued the
cause for appellant. With him on the briefs were Mark T.
Stancil and Sarah R. Prins.

    John Ryskamp, pro se, filed the briefs for appellant.

    Thomas J. Clark, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Tamara W. Ashford, Acting Assistant Attorney General at the
time the brief was filed, and Curtis C. Pett, Attorney.
Kenneth W. Rosenberg and Bridget M. Rowan, Attorneys
entered appearances.

    Before: BROWN, KAVANAUGH and PILLARD, Circuit
Judges.
                               2
    Opinion for the Court filed by Circuit Judge PILLARD.

    Dissenting opinion filed by Circuit Judge BROWN.

     PILLARD, Circuit Judge: John Ryskamp underpaid
federal income taxes for several years and did not respond to
the Internal Revenue Service’s demand for payment. The
Internal Revenue Code provides that, before the IRS levies
against the taxpayer’s property to collect unpaid taxes, the
taxpayer is entitled to what the IRS refers to as a Collection
Due Process (CDP) hearing before an impartial officer of the
IRS Appeals Office. 26 U.S.C. §§ 6330, 6331(d). Subsection
6330(g) of the Code provides, however, that if any “portion of
a request for a hearing” is frivolous or reflects the taxpayer’s
desire to delay or impede the administration of the federal tax
laws, the Appeals Office may treat such portion as if it were
never submitted, and it “shall not be subject to any further
administrative or judicial review.” Id. § 6330(g). The IRS
Appeals Office denied Ryskamp a Collection Due Process
hearing based on its unexplained determination that all the
reasons he gave for requesting a hearing were frivolous and
contends that its frivolousness determination is not subject to
judicial review. The tax court held that it has jurisdiction to
conduct a review limited to whether the IRS correctly treated
Ryskamp’s arguments as frivolous. We agree with the tax
court’s conclusion regarding jurisdiction. We also agree with
the tax court’s assessment that the IRS’s boilerplate letter
rejecting Ryskamp’s arguments as frivolous was inadequate.
Finally, after remand, the Appeals Office held a Collection
Due Process hearing, and the tax court correctly decided that
the Office did not abuse its discretion in concluding the IRS
could proceed with collection actions. We thus affirm the tax
court’s decision in its entirety.
                                 3
                                 I.

     The Internal Revenue Code contains procedures that
permit a taxpayer to contest the methods used by the IRS to
collect overdue taxes, including the IRS’s imposition of a levy
on a taxpayer’s property. Id. §§ 6330, 6331(a). Before
levying property, the Service must provide the taxpayer with
written notice of its intent to levy and inform the taxpayer of
his right to a Collection Due Process hearing before a neutral
official in the IRS’s Appeals Office. Id. §§ 6330(a)(1),
6331(d). At such a hearing, a taxpayer can challenge the
appropriateness of a collection action, propose collection
alternatives, and contest the underlying tax liability (if he did
not already have an opportunity to dispute it). 1             Id.
§ 6330(c)(2). After the hearing, the Appeals Office issues a
determination.       That determination must “take into
consideration” the issues raised by the taxpayer, the Service’s
verification that “the requirements of any applicable law or
administrative procedure have been met,” and “whether any
proposed 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.” Id. § 6330(c). There is no dispute that, after a
Collection Due Process hearing, a taxpayer may seek review
in the tax court of the Service’s determination.              Id.
§ 6330(d)(1).

    The parties’ dispute focuses on the extent to which the
Code eliminates judicial review of the Service’s decision to
deny a taxpayer’s request for a Collection Due Process
hearing on the ground that it is entirely frivolous. See id.

1
  The record is silent as to whether Ryskamp already had an
opportunity to contest his underlying tax liability. He did not make
such an argument before the Appeals Office or tax court, nor has he
made one on appeal.
                                4
§ 6330(g). The Code defines as frivolous any position that
appears on the IRS’s published list of frivolous positions or
that otherwise “reflects a desire to delay or impede the
administration of Federal tax laws.” Id. § 6702(b)(2)(A); see
also id. § 6330(g). The IRS’s list of frivolous positions
includes arguments such as: compliance with the internal
revenue laws is voluntary or optional; the taxpayer’s income
is not taxable because he is a citizen exclusively of a state
(and not a United States citizen); only certain types of
taxpayers are required to pay income taxes (such as federal
government employees or corporations); and federal income
taxes are unconstitutional. I.R.S. Notice 2008-14, 2008-1
C.B. 310. 2 If the IRS determines that a portion of a
taxpayer’s request for a Collection Due Process hearing is
frivolous, the Code provides that the IRS “may treat such
portion as if it were never submitted and such portion shall
not be subject to any further administrative or judicial
review.” 26 U.S.C. § 6330(g). The IRS read subsection (g)
to deprive the tax court of jurisdiction in this case to review
whether the Service correctly determined that Ryskamp’s
hearing request was entirely frivolous and thus could be
treated as if it were never filed.

     For six of the years between 2003 and 2009, Ryskamp
incurred tax liabilities through inadequate withholding from
his earnings and failure to make estimated tax payments. In
2011, the IRS notified Ryskamp that it intended to levy his
property in order to collect his delinquent taxes. Ryskamp
requested a Collection Due Process hearing to challenge the
levy. The content of his original request is unknown, as it
2
  The IRS modified that Notice in 2010. See I.R.S. Notice 2010-33,
2010-17 I.R.B. 609. We cite to the 2008 Notice, however, because
that is the version the Service relied on when determining that
Ryskamp’s requests were frivolous. Both the 2008 and 2010
Notices contain the sample arguments described in the text.
                                 5
was lost by the IRS. The IRS rejected the request pursuant to
subsection (g). The Service stated that Ryskamp had not
offered a legitimate reason for requesting a hearing and asked
that he withdraw his frivolous positions and amend his
request to provide a legitimate reason. Ryskamp submitted an
amended request and attempted to state legitimate grounds.
Ryskamp observed, however, that “without further
information from you [about the basis of your frivolousness
determinations] I cannot decide which, if any, are the
frivolous/desire-to-delay issues I presented in my [original]
Request.” Amicus App. 12. Once again, the IRS concluded
that Ryskamp failed to offer a legitimate reason for requesting
a hearing and relied only on his frivolous reasons. The
Appeals Office stated that it was disregarding Ryskamp’s
request, but its letter recited the various possible reasons the
Service can find a position to be frivolous without specifying
on which of the legal grounds it was relying. 3

     Ryskamp then filed a petition in the tax court. The tax
court first described the argument the IRS would later label as
frivolous: what Ryskamp called “the law of the minimization
of the risk of loss” of “collection-financial-standards facts,” or
“CFS facts.” Amicus App. 24. The court noted, it was
“deeply unclear” what Ryskamp meant by that phrase, which
is not a recognized term of art. Id. The court observed that
“CFS facts” appeared to refer to “facts relevant to the IRS’s
application of its collection financial standards—standards

3
   The Appeals Office’s determination letter stated “I have
determined that your disagreement is either: a ‘specified frivolous
position,’ identified by the IRS in [a] Notice . . . ; or a frivolous
reason reflecting a desire to delay or impede federal tax
administration; or a moral, religious, political, constitutional,
conscientious, or similar objection to the imposition or payment of
federal taxes that reflects a desire to delay or impede the
administration of federal tax laws.” Amicus App. 18.
                                6
that it issues to help individual appeals officers decide . . .
whether a taxpayer would suffer economic hardship if he had
to pay overdue taxes in full or immediately.” Id. By a “risk
of loss” of those facts, the tax court understood Ryskamp to
be arguing that, once he requested a Collection Due Process
hearing, “his financial position in life [should] be frozen in
place and [he should be] protected from anything that might
increase his rent, cost him his job, and result in liability for
state income taxes.” Id. In effect, Ryskamp appeared to be
arguing that the IRS’s guideline taking into account
taxpayers’ economic hardships in fashioning payment plans
for overdue taxes implies not only that the government is
prohibited from taking action to disturb the taxpayer’s
economic position, but that it also has an affirmative
obligation to provide him with financial benefits. The tax
court observed that Ryskamp had failed to cite to any
authority that granted the court the broad powers it would
need to accomplish that result and that the Internal Revenue
Manual, which contained the relevant standards, was not a
source of individual rights. Id. at 24-25.

     The tax court did, however, recognize that “at the bottom
of this extraordinary swirl of motions,” Ryskamp “does find
one devastatingly good point—[he] was sent [a] boilerplate
[letter from the IRS] in which there was no statement . . . as to
why [his] reasons for the request . . . were illegitimate.” Id. at
25 (internal quotation marks omitted). The tax court first
considered whether it had jurisdiction to consider Ryskamp’s
argument that such a boilerplate letter invalidly denied him a
Collection Due Process hearing, and held that it did. Id. at 21.
The court relied on its precedent holding that the IRS’s
determination that a taxpayer’s entire request for a hearing
was frivolous was subject to judicial review to verify the
frivolousness determination.       Id. (citing Thornberry v.
Commissioner, 136 T.C. 356 (2011)). Engaging in that
                               7
limited review, the tax court observed that the IRS sent
Ryskamp a “form letter devoid of any specific identification
of an allegedly frivolous position or other evidence of a desire
to impede tax administration.” Id. at 25. The court stated that
such a letter was “inadequate as [an] explanation for treating a
taxpayer’s request for a hearing as if it had never been made.”
Id. The tax court consequently concluded that Ryskamp was
entitled to summary judgment because the Service’s “failure
to explain why [it] concluded that [Ryskamp’s] request for a
CDP hearing raised only frivolous issues” was “an abuse of
discretion.” Id. But because Ryskamp’s motions had been
“so diffuse,” the tax court ordered Ryskamp to file a report
“setting forth the specific issue and grounds for requesting a
collection due process hearing.” Id. (internal quotation marks
omitted).

     Ryskamp submitted that report, once again offering a
lengthy discussion of his “Collection Financial Standards
Facts” theory. At that point, Ryskamp also adverted to what
appeared to be a non-frivolous argument that he was entitled
to collection alternatives. The tax court reiterated that “[t]he
law of the maintenance of CFS facts is a concept that does not
yet exist in any form capable of enforcement by the U.S. Tax
Court.” Id. at 29. To put the “case on track to resolution,” the
tax court ordered Ryskamp to complete a Request for a
Collection Due Process or Equivalent Hearing form and,
provided that Ryskamp completed the form, ordered the IRS
to hold a Collection Due Process hearing.

    Ryskamp completed the form, and on remand, the
Appeals Office accordingly offered a telephonic hearing
which, at Ryskamp’s request, was converted to a hearing by
exchange of written correspondence. Ryskamp continued to
press his “CFS facts” argument ad nauseam. The Appeals
Office once again concluded that the “CFS facts” arguments
                               8
raised frivolous issues. It summarized Ryskamp’s argument
as follows: The IRS could not levy his assets because his
income was too low “under the laws and [C]onstitution of the
United States,” and he “further demand[ed] an increase in
monthly income in the amount of $5,704.00.” Ryskamp App.
62. The Appeals Office stated that the request “reflect[ed] a
desire to delay or impede federal tax administration.” Id. The
Appeals Office then issued a determination that considered
each of the three non-frivolous arguments raised by Ryskamp:
he requested that the IRS withdraw the lien on his property,
consider collection alternatives, and abate the civil penalty.
The Appeals Office stated that there was nothing in
Ryskamp’s file indicating that the lien should be withdrawn
and that he had provided none of the statutorily requisite
information to support his contention that withdrawal should
be considered. Ryskamp had also requested an installment
agreement that would permit him to pay his liability over
time. The Appeals Office determined that he was ineligible
for such an agreement because he was not in compliance with
his obligation to file tax forms and he had failed to submit the
documentation necessary to support his request. A civil
penalty was appropriate, the Appeals Office concluded,
because Ryskamp had refused to withdraw his frivolous
positions. Finally, the Appeals Office balanced the need for
efficient collection against the concern that the collection
action not be more intrusive than necessary, see 26 U.S.C.
§ 6330(c)(3), and concluded that the lien was appropriate.

     Ryskamp sought tax court review of the Service’s
determination. The tax court once again rejected Ryskamp’s
“CFS facts” argument, for the same reasons it had offered in
its prior orders. The tax court also held that the Service had
not abused its discretion in denying Ryskamp the alternative
methods of collection he requested and granted the IRS’s
                              9
motion for summary judgment. Proceeding pro se, Ryskamp
appealed the tax court’s decision.

     When reviewing the tax court’s determinations on the
merits of a taxpayer’s challenge to tax liability, we review de
novo the tax court’s legal conclusions, including its grant of
summary judgment. Byers v. Commissioner, 740 F.3d 668,
675 (D.C. Cir. 2014). When the merits of the underlying tax
liability are not at issue, we review determinations made by
the Appeals Office in a Collection Due Process hearing for an
abuse of discretion. Id.

                              II.

     On appeal, Ryskamp primarily argues that the tax court’s
decision should be reversed because the Appeals Office
impermissibly failed to address arguments he made in his
request for a Collection Due Process hearing. In response, the
IRS first contends that the tax court lacked jurisdiction to
review the IRS’s conclusion that Ryskamp’s request for a
Collection Due Process hearing contained only frivolous
arguments. Alternatively, the Service argues that the tax
court correctly sustained the IRS’s determination that
collection of Ryskamp’s tax liabilities by levy against his
property could proceed. This court appointed amicus curiae
counsel to address the jurisdictional question raised by the
IRS. We turn to that question first, and, because we hold that
the tax court had jurisdiction, we then address the tax court’s
resolution of the frivolousness question.

                              A.

     We must decide whether Code section 6330(g) means, as
the Service contends, that the tax court lacks jurisdiction to
conduct any review whatsoever of the IRS’s decision to treat
a request for a Collection Due Process hearing as frivolous, or
                               10
whether, as amicus counsel contends, subsection (g) permits
the tax court to review the IRS’s frivolousness determination.
We hold that subsection (g) does not strip the courts of
jurisdiction to review the narrow question whether the Service
correctly determined that all of a taxpayer’s arguments are
frivolous. See Thornberry, 136 T.C. at 367. On such review,
the court may evaluate whether the Service’s characterization
of an argument as frivolous is facially plausible—i.e., whether
the Service meaningfully identified how the request is
frivolous and whether it overlooked a non-frivolous argument.
See id. A reviewing court cannot, however, reach the merits
of any argument it deems to be non-frivolous.

     Whether the tax court had jurisdiction to review the IRS’s
frivolousness determination depends on the meaning of
section 6330(g). Subsection (g) states, in its entirety:

   Notwithstanding any other provision of this section, if
   the Secretary determines that any portion of a request
   for a hearing under this section or section 6320 meets
   the requirement of clause (i) or (ii) of section
   6702(b)(2)(A), then the Secretary may treat such
   portion as if it were never submitted and such portion
   shall not be subject to any further administrative or
   judicial review.

26 U.S.C. § 6330(g). The relevant clauses of section 6702, in
turn, state that a position is frivolous—and thus can be treated
as if never submitted—if it is based on a position the IRS has
specifically included on a published list of frivolous positions
or if it “reflects a desire to delay or impede the administration
of Federal tax laws.” Id. § 6702(b)(2)(A)(i) & (ii), (c).

     Section 6330 recognizes the tax court’s jurisdiction to
review a “determination under this section,” id.
§ 6330(d)(1)—and section 6330 includes subsection (g) on
                               11
frivolous hearing requests. The use of the word “determines”
in subsection (g) supports the position advanced by amicus
counsel that the tax court may review the Service’s
determination that an entire request for a Collection Due
Process hearing is frivolous. Section 6330 does not define
“determination.” The reference to a determination clearly
includes the Appeals Office’s findings and decisions after it
conducts a Collection Due Process hearing.              See id.
§ 6330(c)(3); see also 26 C.F.R. § 301.6330-1(e)(3) A-E8.
We conclude that it also includes a determination made under
subsection (g), under which the Service “determines” whether
a portion of a taxpayer’s hearing request contains frivolous
arguments. 26 U.S.C. § 6330(g). Congress in subsection (g)
could have used another term—such as “decides” or
“concludes”—to describe the Service’s assessment of
frivolousness. It chose to use the word “determines,” and
“determinations” are reviewable by the tax court.
Additionally, the text of subsection (g) does not state that the
IRS’s frivolousness determinations are shielded from review.
Rather, the statute says that the “portion” of a request that is
frivolous “shall not be subject to any further administrative or
judicial review.” Id. It is thus the content of the request itself
that is shielded from review, not the IRS’s threshold
frivolousness determination. The plain language of the
statute, therefore, leaves the IRS’s frivolousness
determination within the category of determinations subject to
judicial review.

      Our reading of the statutory language respects subsection
(g)’s limitation on administrative and judicial review. As we
read it, subsection (g) precludes the tax court from reaching
the merits of a purportedly frivolous position. Cf. Bell v.
Hood, 327 U.S. 678, 682 & n.2 (1946) (distinguishing
assessment of questions going to jurisdiction from decision on
the merits). Instead, the tax court’s review is limited to
                              12
assessing whether the Service has adequately identified why it
deems the taxpayer’s request, or portions thereof, to be
frivolous, and whether that frivolousness assessment is
facially plausible. See Schlabach v. United States, 101 Fed.
Cl. 678, 685 (Fed. Cl. 2011); Thornberry, 136 T.C. at 367-69.
That limited review provides a safeguard against the risk that
the Service may have misconstrued or inadvertently
overlooked a non-frivolous, i.e. plausible or potentially
meritorious, request. See Thornberry, 136 T.C. at 370-71.
The remedy for an unexplained or flawed frivolousness
determination by the IRS is a remand to permit the Appeals
Office either to identify why a particular argument is
frivolous or to hold a Collection Due Process hearing to
address any non-frivolous arguments on their merits. Id. at
367-68. If, by contrast, the tax court sustains the IRS’s
determination that the request only raises frivolous issues, no
further review occurs and no Collection Due Process hearing
is required. See id. at 367; see also Buczek v. Commissioner,
No. 8512-14L, 2014 WL 4976218, at *5 (T.C. Oct. 6, 2014).

     Our interpretation of subsection (g) accords with that of
the tax court. See Thornberry, 136 T.C. at 367-73; see also
Buczek, 2014 WL 4976218, at *6. In Thornberry, the tax
court faced taxpayers in a procedural posture similar to
Ryskamp’s. The taxpayers had submitted a request for a
Collection Due Process hearing to the IRS to which the IRS
responded with boilerplate letters rejecting all of the
taxpayers’ arguments as frivolous, and the taxpayers sought
review in the tax court. Thornberry, 136 T.C. at 358-361.
The IRS contended that subsection (g) precluded the tax court
from reviewing its frivolousness determinations. Id. at 363,
365. The tax court rejected that argument. It observed that
the Code grants the IRS authority to impose civil penalties on
taxpayers who submit frivolous requests and contemplates
judicial review of those penalties. Id. at 366-67 & n.2; see 26
                              13
U.S.C. §§ 6702(b), 6703. That statutory recognition of
judicial review limited to the soundness of the threshold,
frivolousness determination supported the tax court’s
conclusion that “while section 6330(g) prohibits judicial
review of the portion of a request for an administrative
hearing that the Appeals Office determined is based on an
identified frivolous position or reflects a desire to delay, it
does not prohibit judicial review of that determination by the
Appeals Office.” Thornberry, 136 T.C. at 367. The court
thus held that it could conduct a review limited to the
frivolousness issue to determine whether the Appeals Office
“properly treated the entire request as if it were never
submitted.” Id. at 368. In conducting that review in
Thornberry, the court discovered that the IRS had indeed
erred.     The taxpayers had raised several potentially
meritorious issues in their request for collection alternatives—
points going to their underlying tax liability and the
intrusiveness and undue hardship posed by collection. Id. at
370-71. The tax court remanded to the Appeals Office for a
hearing on the merits of those non-frivolous arguments. Id. at
372-73.

     That approach comports with precedent addressing
similar claims by other agencies that their actions are shielded
by statute from judicial review. In Mach Mining, LLC v.
EEOC, 135 S. Ct. 1645 (2015), for example, the Supreme
Court considered whether Title VII bars judicial review of the
EEOC’s assertion that it satisfied its statutory obligation to
attempt conciliation with an employer before the EEOC may
file a Title VII suit in court. Id. at 1649-50. The government
argued that various provisions of Title VII preclude judicial
review of the EEOC’s satisfaction of its pre-filing conciliation
obligation. See id. at 1650. The Supreme Court rejected that
argument. Id. at 1651-53. Instead, the Court concluded that a
reviewing court must ensure that the EEOC complied with
                               14
statutory conciliation requirements at least to the degree that it
communicated to the employer that an unlawful employment
practice had been alleged and engaged the employer in some
form of discussion. Id. at 1653-56. The Court cautioned,
however, that a reviewing court may not do a “deep dive into
the conciliation process.” Id. at 1653. The same is true here.
The tax court may not do a “deep dive” into the merits of the
purportedly frivolous position, but must conduct a limited,
threshold review to ensure that the IRS did not err in its
determination that the taxpayer raised only frivolous
arguments.

    Our conclusion fully respects Congress’s intent in
enacting subsection (g).        Congress sought to prevent
taxpayers from throwing up a smokescreen of frivolous
arguments, all subject to time consuming appeal on their
merits, before the Service might bring its enforcement powers
to bear to collect underpaid taxes. Subsection (g) enables the
IRS to dispose of frivolous claims quickly. The court may
only verify whether the Service articulated a facially plausible
reason for rejecting a position as frivolous. Preserving the tax
court’s authority to review, even in a limited way, whether the
IRS correctly identified as frivolous a taxpayer’s request for a
Collection Due Process hearing provides an important
backstop against erroneous determinations by the Service.
Absent any judicial review whatsoever of the Service’s
denials of putatively frivolous Collection Due Process hearing
requests, the IRS would have unilateral and unchecked power
to make those decisions; as the Supreme Court stated when
faced with the analogous issue in Mach Mining, “[w]e need
not doubt the [agency’s] trustworthiness, or its fidelity to law,
to shy away from that result.” Id. at 1652. Instead, it is
enough to know that “legal lapses and violations occur, and
especially so when they have no consequence.” Id. at 1652-
53.
                              15
     Just such a lapse occurred in Thornberry. In that case,
the taxpayers’ request contained both frivolous and non-
frivolous arguments, but the Service overlooked the
taxpayers’ non-frivolous arguments and denied their request
for a hearing. See 136 T.C. at 370; see also Buczek, 2014 WL
4976218, at *5. Following remand, however, the parties
agreed that the taxpayers’ liabilities were uncollectable
because of economic hardship, and the IRS abated the civil
penalty. Buczek, 2014 WL 4976218, at *5. If no judicial
review whatsoever were available, taxpayers like the
Thornberrys would be without recourse when the IRS
incorrectly concludes that their requests for hearings are
entirely frivolous—a result Congress cannot have intended.
Tax court review of threshold frivolousness determinations
will encourage the IRS to consider carefully each reason a
taxpayer presents for requesting a hearing. Close scrutiny by
the IRS helps to ensure the accuracy of those determinations
and checks against mistakenly lumping together and
dismissing non-frivolous and frivolous arguments, thereby
invalidly cutting off the recourse the Code provides.

      Judicial review of an IRS determination that a request for
a Collection Due Process hearing is frivolous may be the only
way to ensure a taxpayer is not erroneously denied the
benefits of the Code’s pre-levy review process. The IRS
contends that post-levy tax refund suits provide an alternative
avenue for a taxpayer wishing to challenge a tax liability.
See, e.g., 26 U.S.C. § 7422; 28 U.S.C. § 1346(a)(1). Be that
as it may, the IRS has failed to explain how, under its reading,
subsection (g) would not equally preclude review of the IRS’s
frivolousness determination in that context. According to the
IRS’s interpretation of subsection (g), it appears that review
of a frivolousness determination would be barred in any
administrative or judicial proceeding, so it is not apparent
how it could be considered in an eventual tax refund suit.
                               16
Moreover, a taxpayer can only file a tax refund suit in district
court challenging the IRS’s collection of a tax after he pays
his liability in full. See 26 U.S.C. § 7422; Flora v. United
States, 357 U.S. 63, 75 (1958). Post-payment review is
almost certainly too late to redress a taxpayer’s objections to
the collection process. Requiring a taxpayer to pay his tax
liability in full before he can obtain review of his claims about
payment process or terms—such as that he would suffer
economic hardship without an installment plan or offer-in-
compromise—effectively nullifies the utility of such review.
Additionally, although a Collection Due Process hearing is
often focused on payment terms, in some cases it is the
taxpayer’s only opportunity to dispute before the IRS the
existence or amount of his underlying liability. See 26 U.S.C.
§ 6330(c)(2)(B). In such a case, the IRS’s rejection of a
taxpayer’s argument as frivolous would foreclose the taxpayer
from obtaining judicial review of the correctness of the
Service’s assessment of liability.

    For all of the foregoing reasons, we conclude that the tax
court correctly determined that it had jurisdiction to conduct a
minimal, threshold review of the Service’s determination that
Ryskamp’s request for a hearing was frivolous.

                               B.

     Having decided that the tax court had jurisdiction to
review the IRS’s frivolousness determination, we next
consider whether that court correctly rejected the Service’s
treatment of all of Ryskamp’s arguments as frivolous. We
affirm the tax court’s holding that the IRS’s boilerplate letter
rejecting Ryskamp’s request for a Collection Due Process
hearing was inadequate. As the tax court recognized, the
IRS’s letter failed to identify any of Ryskamp’s allegedly
frivolous positions. The letter merely included a bullet point
                             17
list of all of the possible reasons the Service could find a
request to be frivolous and did not correlate them with any
aspects of Ryskamp’s request. Such a list provides the
taxpayer with little guidance as to how to proceed. As
Ryskamp himself pointed out, he could not withdraw his
frivolous positions without first being informed of which
positions the Service believed were frivolous. The letter also
lacked any explanation of how and whether the Appeals
Office concluded that Ryskamp’s request reflected a desire to
delay or impede tax administration, such as by identifying
statements in the request reflecting such a desire. See
Thornberry, 136 T.C. at 371. We therefore affirm the tax
court’s conclusion that the IRS abused its discretion in
rejecting Ryskamp’s request for a hearing without first
articulating the grounds of its frivolousness determination.

                             III.

     On remand from the tax court, the Service gave Ryskamp
the opportunity to submit a new request for a Collection Due
Process hearing. He did so, and raised both frivolous and
non-frivolous arguments. The Appeals Office held a hearing
by correspondence, rejected Ryskamp’s frivolous positions,
considered his non-frivolous positions, and concluded that the
IRS could proceed with the collection of Ryskamp’s tax
liability. As the tax court observed, Ryskamp refused to
provide the Appeals Office with necessary financial
information, and he failed to offer any proof that he was in
compliance with his tax filing obligations. See, e.g., Orum v.
Commissioner, 412 F.3d 819, 821 (7th Cir. 2005) (holding
IRS did not abuse its discretion in denying collection
alternatives where the taxpayers failed to supply requested
information or keep current with tax obligations); Hartmann
v. Commissioner, 638 F.3d 248, 250-51 (3d Cir. 2011) (per
curiam) (same). On appeal, Ryskamp does not dispute those
                              18
facts. He has thus presented no basis to overturn the IRS’s
decision to deny his request for collection alternatives. Nor
has he made any arguments concerning the Appeals Office’s
denial of his requests to withdraw the lien or for an abatement
of the civil penalty. We therefore agree with the tax court
that, after conducting the Collection Due Process hearing, the
Appeals Office did not abuse its discretion in concluding the
Service could proceed with collection.

     The bulk of Ryskamp’s briefing has focused on his
continued belief that he has an “individually enforceable
entitlement . . . to the maintenance of Collection Financial
Standards facts,” and that the IRS erred by failing to respond
to his “CFS facts” arguments during his Collection Due
Process hearing. Ryskamp Br. 7-9. For the reasons ably set
forth by the tax court, we agree that Ryskamp has failed to
articulate a cognizable legal theory. We also agree that the
IRS did not abuse its discretion in failing to respond
substantively to Ryskamp’s “CFS facts” argument. In its
correspondence with Ryskamp, the Appeals Office
specifically identified that argument as one that “reflect[ed] a
desire to delay or impede federal tax administration.”
Ryskamp App. 62. The tax court has explained and
repeatedly reaffirmed that Ryskamp’s “CFS facts” argument
is not recognized by the law. The IRS was under no
obligation to respond further to Ryskamp’s arguments. It may
therefore proceed with the levy of his property.

                            * * *

    For all of the foregoing reasons, the decision of the tax
court is affirmed.

                                                    So ordered.
     BROWN, Circuit Judge, dissenting: Answer a fool
according to his folly. Proverbs 26:5. Realizing that the
Internal Revenue Service (the IRS) encounters its fair share of
jesters, Congress permitted the IRS to disregard frivolous
Collection Due Process (CDP) hearing requests and
prohibited further administrative or judicial review of that
decision. The court finds that result too harsh. Because I
think Congress expressly deprived the Tax Court (or any
court) of jurisdiction to review the denial of frivolous hearing
requests, I respectfully dissent.

     Before 1998, the IRS could initiate and impose a levy on
a taxpayer’s property without providing a hearing. See Byers
v. Comm’r, 740 F.3d 668, 671 (D.C. Cir. 2014). Mindful that
the exercise of such power could prove strong medicine for
taxpayers, Congress sought to “temper ‘any harshness’” in the
system by permitting CDP hearings in the IRS’s Office of
Appeals. Id. In CDP hearings, taxpayers may “contest the
IRS’s means of collecting overdue taxes.” Id. Under Section
6330(b)(1), it is relatively easy to receive a CDP hearing: all a
taxpayer must do is request a hearing in writing, stating the
grounds for the request.

     Congress’ good deed did not go unpunished. Frivolous
CDP requests besieged the IRS. See, e.g., Progress Report on
the IRS Restructuring and Reform Act of 1998, Hearings
Before the Joint Economic Committee, 107th Cong. 2 Sess.
(2002) (statement of Charles O. Rossotti, Comm’r of Internal
Revenue). In response, Congress enacted the Tax Relief and
Health Care Act of 2006, Pub. L. No. 109-432, 120 Stat. 2922
(codified at I.R.C. § 6330(g)), which states, “Notwithstanding
any other provision of this section, if the Secretary determines
that any portion of a request for a hearing under this section”
is frivolous or reflects a desire to delay or impede the
administration of federal tax laws “then the Secretary may
treat such portion as if it were never submitted and such
                              2
portion shall not be subject to any further administrative or
judicial review.”

     Appellant John Ryskamp submitted a request for a CDP
hearing pursuant to I.R.C. § 6330, and the IRS Office of
Appeals responded with a notice stating it would disregard the
request, “as IRC § 6330(g) allows,” because it was premised
exclusively upon frivolous reasons. J.A. 18. Ryskamp
appealed and the Tax Court heard the case, assuring itself of
jurisdiction by relying on its own decision in Thornberry v.
Comm’r, 136 T.C. 356, 367 (2011). But Thornberry is a
dubious precedent and the Tax Court’s conclusion – that it
should review the IRS’s denial of Ryskamp’s frivolous
hearing request – seems irreconcilable with Section 6330(g).
Congress determines the Tax Court’s jurisdiction, see
Comm’r v. McCoy, 484 U.S. 3, 7 (2014) (“The Tax Court is a
court of limited jurisdiction” and possesses only that
jurisdiction expressly conferred by Congress in the Internal
Revenue Code); I.R.C. § 7442, and Congress specifically
barred determinations of frivolousness from “further
administrative or judicial review.”

     Like the Tax Court, this Court proffers a number of
inventive justifications for ignoring the plain meaning of the
statute, beginning by conflating “dismissal” and
“determination” and then parsing the meaning of “portion.”
Yet, none of these moves is sufficient to shift the weight of
Congress’ clear intent.

     First, the phrase, “shall not be subject to any
further administrative or judicial review,” I.R.C. § 6330(g)
(emphasis added), makes the frivolousness characterization
dispositive.   Once the IRS reviews a CDP hearing request
and dismisses all or a portion of the request as frivolous, no
additional review is permitted. See Engine Mfrs. Ass’n v.
                               3
South Coast Air Quality Management Dist., 541 U.S. 246,
252 (2004) (“Statutory construction must begin with the
language employed by Congress and the assumption that the
ordinary meaning of that language accurately expresses the
legislative purpose.”)

    Moreover, while Section 6330(g), like Section
6330(d)(1), refers to a “determination,” the predicate
“notwithstanding” defines its use.       Thus, despite what
Congress has authorized elsewhere in the statute, Section
6330(g) precludes review of frivolous determinations.

     Finally, the heading of the subsection relied upon by the
majority confirms this more limited reading. See, e.g., INS v
Nat’l Ctr. for Immigrants’ Rights, Inc., 502 U.S. 183, 189
(1991) (“[T]he title of a statute or section can aid in resolving
an ambiguity in the legislation’s text.”); Brotherhood of R.R.
Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 528-29
(1947) (stating headings “are but tools available for the
resolution of a doubt.”) The determination contemplated by
Section 6330(d)(1) is made after a hearing. But under Section
6330(g) the Appeals Office does not conduct a hearing before
dismissing a request as frivolous. Consequently, a notice
characterizing a request as frivolous is not a “determination”
subject to judicial review under Section 6330(d)(1).

     Nevertheless, the court insists that “portion” in Section
6330(g) means only the content of a hearing request is
immune from further review — not the procedural
determination itself. Yet, “portion” cannot bear such a
parsing when read in context. In Thornberry v. Comm’r, 136
T.C. at 367, the Tax Court held — despite the prohibition
found in Section 6330(g) — it had jurisdiction “to decide
whether the Appeals Office determined that all portions of
petitioners’ requests for an administrative hearing meet the
                                4
requirements” for a portion that may be disregarded and
“properly treated the entire request as if it were never
submitted.” Id. At 367-68. My colleagues accept this
reasoning, describing the Tax Court’s function here as
“limited.” Majority Op. at 12. The Tax Court is not
reviewing the merits of the Appeal Office’s determination —
they say — but is instead taking a look to make sure the IRS
did not inadvertently overlook a legitimate reason for the
hearing request. But this semantic subtlety violates a
fundamental law of logic: a thing cannot be and not be at the
same time. The IRS cannot simultaneously be permitted to
ignore frivolous portions of requests and also be required to
identify and explain why those portions were ignored. And
once the court begins reviewing portions deemed frivolous
there can be no meaningful distinction between determining
the Appeals Office mistakenly ignored a legitimate portion of
a request — the helpful, “limited” review desired by the court
— and determining the Appeals Office reached the wrong
conclusion — “merits” review.

     Putting aside these metaphysical musings, the point of
Section 6330(g) seems clear enough. There is no answer to
the riddle of how much review is enough because no review is
available at all. A jurisdiction-stripping provision is a closed
door, not an invitation to come inside and engage in a little
“gatekeeping” review. See Ex parte McCardle, 74 U.S. 506,
514 (1868) (“Jurisdiction is power to declare the law, and
when it ceases to exist, the only function remaining to the
court is that of announcing the fact and dismissing the
cause”); Amgen, Inc. v. Smith, 357 F.3d 103, 113 (2004) (“If a
no-review provision shields particular types of administrative
action, a court may not inquire whether a challenged agency
decision is arbitrary, capricious, or procedurally defective . . .
.”).
                               5
     The court cannot evade these obstacles by relying on
Amgen; that case would only permit us to consider whether
the statute authorized the Appeals Office to make the initial
frivolousness decision. In this case, there is no argument the
IRS’s decision to disregard Ryskamp’s hearing request was
ultra vires. Section 6330(g) clearly gives the IRS the
authority to disregard portions of a hearing request it deems
frivolous. The Appeals Office’s notice expressly invoked
Section 6330(g) when informing Ryskamp his request was
being disregarded. J.A. 18. There is no confusion here as to
whether the IRS’s action was of the sort shielded from
judicial review. Every portion of Ryskamp’s hearing request
was deemed frivolous, and those portions may not be
subjected to further review.

     While there is a “strong presumption that Congress
intends judicial review of administrative action,” Bowen v.
Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986),
the presumption is overcome where there is “‘clear and
convincing evidence’ that Congress intended to preclude the
suit.” Amgen, 357 F.3d at 111. Here, Congress explicitly
ousted the Tax Court — and all courts and agencies — of
jurisdiction to review any portion of a hearing request the
Office of Appeals treats as if never submitted pursuant to
Section 6330(g). See id. at 112 (finding clear and convincing
evidence of preclusion of judicial review in the plain text of a
statute stating “there shall be no administrative or judicial
review”). Could Congress have been clearer? Surely not.

     The majority worries that, without review, the IRS would
have “unilateral” and “unchecked” authority to determine
what constitutes a frivolous CDP hearing request. Under such
circumstances, they say, valid claims may inadvertently be
marked frivolous and disregarded. Theirs is a legitimate
worry. But it is not one for us to relieve. As Congress has the
                               6
authority to determine the jurisdiction of the Tax Court, so too
does Congress have the power to decide how the IRS might
best bring its enforcement powers to bear. In making its
preference plain, Congress accepted the risk of IRS error or
mistake. Rather than helpfully improve upon Congressional
decision-making, we must abide by the basic rule of statutory
interpretation that Congress “says in a statute what it means
and means in a statute what it says there.” Barnhart v.
Sigmon Coal Co., Inc., 534 U.S. 438, 461–62 (2002). I
respectfully dissent.
