                                              MARTIN DAVID HOYLE, PETITIONER v. COMMISSIONER
                                                    OF INTERNAL REVENUE, RESPONDENT *

                                                        Docket No. 7217–04L.                       Filed May 23, 2011.

                                                 After this Court’s remand of the instant case for R’s
                                               Appeals Office to determine, pursuant to I.R.C. sec. 6330(c)(1),
                                               whether R properly sent P a notice of deficiency, R seeks, by
                                               way of a motion in limine, to have the administrative record
                                               from the remand hearing admitted into evidence. P objects on
                                               three grounds: (1) The matters in the record on remand were
                                               not considered at the original hearing; (2) R’s counsel and the
                                               settlement officer engaged in improper ex parte contact; and
                                               (3) documents in the administrative record on remand are
                                               inadmissible hearsay. During the pendency of the instant
                                               case, R refiled the notice of Federal tax lien (NFTL) in issue.
                                               P moves to dismiss respondent’s refiled NFTL. Held: At the
                                               hearing on remand, R’s settlement officer was not limited to
                                               a consideration of matters considered by the Appeals officer in
                                               the original administrative hearing. Held, further, R’s counsel
                                               and the settlement officer did not engage in prohibited ex
                                               parte contact. Held, further, the administrative record, once it
                                               has been authenticated, is admissible to show information
                                               available to the Appeals Office during the administrative
                                               consideration of petitioner’s case on remand. Until documents
                                               from that record are offered to prove the truth of the matters
                                               asserted therein, it is unnecessary to rule on P’s hearsay
                                               objection. Held, further, R may refile the NFTL.

                                           Martin David Hoyle, pro se.
                                           Beth A. Nunnink, for respondent.

                                                                      SUPPLEMENTAL OPINION

                                        WELLS, Judge: The instant case is before the Court on
                                      respondent’s motion in limine and petitioner’s motion to dis-
                                      miss respondent’s lien. 1 We must decide: (1) Whether the
                                         * This Opinion supplements Hoyle v. Commissioner, 131 T.C. 197 (2008).
                                         1 Petitioner has filed numerous other motions, including a motion to dismiss, to bar evidence

                                      or to set a time limit for response filed on Dec. 15, 2008; motion to dismiss and to bar evidence
                                      filed on Mar. 19, 2009; motion for summary judgment filed on Oct. 5, 2009; and motion to dis-
                                                                                                    Continued


                                                                                                                                     463




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                                      proposed Supplemental Stipulation of Facts and exhibits
                                      should be admitted into evidence; and (2) whether
                                      respondent may refile a notice of Federal tax lien (NFTL)
                                      during the pendency of these proceedings.

                                                                               Background
                                         Many of the relevant facts are set forth in our prior
                                      Opinion in the instant case, Hoyle v. Commissioner, 131 T.C.
                                      197 (2008) (prior Opinion), and are incorporated by reference.
                                      Additionally, some of the facts discussed in this Opinion are
                                      taken from the parties’ moving papers for the purpose of
                                      ruling on respondent’s motion in limine and petitioner’s
                                      motions.
                                         At the time he filed the petition, petitioner resided in Lou-
                                      isiana.
                                         The record contains a notice of deficiency dated March 28,
                                      1996, for petitioner’s 1993 tax year. On August 26, 1996,
                                      respondent assessed the amounts stated in the notice of defi-
                                      ciency.
                                         On September 12, 2002, respondent sent petitioner a
                                      Notice of Federal Tax Lien Filing and Your Right to a
                                      Hearing Under IRC 6320 with respect to petitioner’s unpaid
                                      tax liability for 1993. On or around September 17, 2002,
                                      respondent filed an NFTL in Jefferson Parish, Louisiana
                                      (original NFTL). The original NFTL indicated, on its face, that
                                      unless refiled by September 25, 2006, the original NFTL
                                      would operate as a certificate of release of lien as defined in
                                      section 6325(a). 2 Petitioner timely requested a review of the
                                      original NFTL with respondent’s Appeals Office.
                                         On March 31, 2004, respondent’s Appeals Office sent to
                                      petitioner a notice of determination upholding the original
                                      NFTL. Petitioner timely filed a petition with this Court.
                                         On December 3, 2008, we issued our prior Opinion. In our
                                      prior Opinion we stated:
                                      we are unable to ascertain the basis for the Appeals officer’s verification
                                      that all requirements of applicable law were met. Consequently, we will
                                      remand this case to the Appeals Office for it to clarify the record as to

                                      miss and to bar evidence filed on Oct. 5, 2009. These motions contain many of the same argu-
                                      ments petitioner made in his objection to respondent’s motion in limine. On the basis of our
                                      holding in the instant Opinion, we will deny petitioner’s motions.
                                        2 Unless otherwise indicated, section references are to the Internal Revenue Code of 1986, as

                                      amended, and Rule references are to the Tax Court Rules of Practice and Procedure.




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                                      what the Appeals officer relied upon in determining that the notice of defi-
                                      ciency was properly sent to petitioner. [Hoyle v. Commissioner, supra at
                                      205; fn. ref. omitted.]

                                      In a footnote, we noted: ‘‘We are remanding this case in order
                                      for the Appeals Office to ‘examine underlying documents’ and
                                      make a record of what was relied upon in making the deter-
                                      mination that the notice of deficiency was ‘properly sent’.’’ Id.
                                      n.7 (quoting Chief Counsel Notice CC–2006–19 (Aug. 18,
                                      2006)). On December 19, 2008, we issued an order stating
                                      that ‘‘this case is remanded to respondent’s Office of Appeals
                                      for the purpose of clarifying the record regarding the issue of
                                      what the Appeals officer relied upon in determining that the
                                      notice of deficiency was properly sent to petitioner.’’
                                         On December 22, 2008, respondent’s counsel Beth Nunnink
                                      (Ms. Nunnink) sent a letter to Supervisory Revenue Officer
                                      Clifford Whitely (Mr. Whitely) regarding the instant case. In
                                      that letter, Ms. Nunnink stated that she was forwarding the
                                      administrative file to which she had added a copy of the U.S.
                                      Postal Service certified mail list dated March 28, 1996, which
                                      lists notices of deficiency sent to petitioner and Wayne
                                      Leland, to whom petitioner had delegated his power of
                                      attorney (certified mail list). Petitioner was sent a copy of the
                                      December 22, 2008, letter. On January 20, 2009, Settlement
                                      Officer Magee (Ms. Magee) was assigned to the case.
                                         Ms. Nunnink and Ms. Magee had several conversations
                                      after the remand of this case to respondent’s Appeals Office.
                                      On January 20, 2009, Ms. Magee and Ms. Nunnink conferred
                                      by telephone and email regarding the case. In those commu-
                                      nications Ms. Nunnink advised Ms. Magee to give petitioner
                                      a face-to-face conference and to decide four issues: (1)
                                      Whether the notice of deficiency was sent to petitioner’s last
                                      known address; (2) whether the assessment was valid; (3)
                                      whether petitioner could raise the underlying liability on the
                                      ground that he had not received the notice of deficiency; and
                                      (4) the items relied on to make the foregoing determinations.
                                         On January 23, 2009, Ms. Magee advised Ms. Nunnink
                                      that she would have a face-to-face conference with petitioner
                                      on February 19, 2009. Ms. Nunnink advised Ms. Magee that
                                      petitioner’s amended return for his 1993 tax year had been
                                      admitted into evidence at trial. Ms. Magee and Ms. Nunnink
                                      conferred regarding status reports to the Court. Ms. Nunnink




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                                      reviewed Ms. Magee’s draft supplemental notice of deter-
                                      mination to ascertain whether all issues the Court had
                                      required to be addressed were included in Ms. Magee’s deter-
                                      mination and that all explanations were complete.
                                         On February 23, 2009, Ms. Magee asked Ms. Nunnink a
                                      legal question: If petitioner had previously received a notice
                                      of deficiency, could he still raise his underlying tax liability
                                      as an issue now? After some research on the subject, Ms.
                                      Nunnink advised Ms. Magee that if petitioner had received
                                      a notice, he could no longer contest his underlying liability.
                                         On February 19, 2009, Ms. Magee discovered that the re-
                                      filing date stated on the original NFTL had passed. Through-
                                      out several conversations Ms. Nunnink kept Ms. Magee
                                      informed about the refiling of the NFTL, and they discussed
                                      who should speak with petitioner regarding the refiling. On
                                      March 3, 2009, respondent filed Form 12474–A, Revocation of
                                      Certificate of Release of Federal Tax Lien, with the Clerk of
                                      Court of Jefferson Parish, Louisiana. Immediately thereafter,
                                      respondent refiled the NFTL for petitioner’s 1993 tax year
                                      with the Clerk of Court of Jefferson Parish, Louisiana.
                                         On June 26, 2009, Ms. Magee issued a Supplemental
                                      Notice of Determination Concerning Collection Action(s)
                                      Under Section 6320 and/or 6330.
                                         On March 19, 2010, respondent sent to petitioner a supple-
                                      mental stipulation of facts to which was attached the record
                                      from the hearing on remand with Ms. Magee, including the
                                      certified mail list. Petitioner raised objections to the stipula-
                                      tion, and on May 3, 2010, respondent filed the instant motion
                                      in limine.

                                                                                Discussion
                                        Respondent contends that we should rule in limine that
                                      the following documents will be admitted into the record: (1)
                                      The original administrative record as submitted into evi-
                                      dence at trial, before the issuance of our prior Opinion
                                      remanding the case to respondent’s Appeals Office; (2) sev-
                                      eral previous filings made with the Court; 3 and (3) several
                                        3 These filings include the petition filed on Apr. 30, 2004, the answer filed on June 29, 2004,

                                      respondent’s motion for summary judgment filed on Sept. 26, 2006, petitioner’s response to re-
                                      spondent’s motion for summary judgment filed on Oct. 25, 2006, petitioner’s pretrial memo-
                                      randum filed on May 21, 2007, respondent’s opening brief filed on Aug. 6, 2007, petitioner’s an-
                                      swering brief filed on Sept. 20, 2007, respondent’s reply brief filed on Nov. 14, 2007, and our




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                                      documents that Ms. Magee created or considered on remand
                                      (administrative record on remand). Evidence previously
                                      admitted at trial, like the trial transcript itself, is already in
                                      the record, and we therefore need not address its admissi-
                                      bility. The pleadings, motions, briefs, etc., previously filed
                                      with the Court also are part of the record in this case, and
                                      unless and until they are offered into evidence for a par-
                                      ticular purpose, we need not address their admissibility as
                                      evidence. As to the administrative record on remand,
                                      respondent contends that it is admissible under the business
                                      records exception to the hearsay rule. See Fed. R. Evid.
                                      803(6). 4
                                         Petitioner contends that the administrative record on
                                      remand is not admissible into evidence because the matters
                                      therein were not considered at the original administrative
                                      hearing before remand, that Ms. Nunnink and Ms. Magee
                                      had improper ex parte contact regarding the hearing on
                                      remand, and that the documents in the administrative record
                                      on remand, specifically a certified mail list showing the
                                      mailing of the notice of deficiency in issue to petitioner and
                                      to his representative, are inadmissible hearsay on account of
                                      a lack of trustworthiness. See id.
                                         A taxpayer is entitled to a single hearing under section
                                      6320 with respect to the year to which the unpaid liability
                                      relates. Sec. 6320(b)(2); Freije v. Commissioner, 131 T.C. 1,
                                      5 (2008), affd. 325 Fed. Appx. 448 (7th Cir. 2009); see also
                                      Kelby v. Commissioner, 130 T.C. 79, 86 (2008) (similar
                                      holding for section 6330 cases). When this Court remands a
                                      case to the Appeals Office, the hearing on remand is a
                                      supplement to the taxpayer’s original section 6320 hearing.
                                      Kelby v. Commissioner, supra at 86; see also Olsen v. United
                                      States, 414 F.3d 144, 155 (1st Cir. 2005) (‘‘In the event the
                                      administrative record is found inadequate for judicial review,
                                      ‘the proper course, except in rare circumstances, is to remand
                                      to the agency for additional investigation or explanation’.’’
                                      (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744
                                      (1985))). The hearing on remand provides the parties with
                                      the opportunity to complete the initial section 6320 hearing
                                      while preserving the taxpayer’s right to receive judicial
                                      prior Opinion in the instant case, Hoyle v. Commissioner, 131 T.C. 197 (2008).
                                        4 Proceedings in the Tax Court are generally governed by the Federal Rules of Evidence. Rule

                                      143(a).




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                                      review of the ultimate administrative determination. Kelby v.
                                      Commissioner, supra at 86; see also Wadleigh v. Commis-
                                      sioner, 134 T.C. 280, 299 (2010) (similar result in a section
                                      6330 case). A corollary to the fact that the taxpayer may
                                      receive only one hearing is that the Commissioner’s Appeals
                                      Office makes a single determination. Kelby v. Commissioner,
                                      supra at 86. When this Court remands a case to the Appeals
                                      Office and it comes back to us after a supplemental deter-
                                      mination is issued, we review the supplemental determina-
                                      tion. Id.
                                         We remanded the instant case for the Appeals Office to
                                      determine, as a part of its verification ‘‘that the requirements
                                      of any applicable law * * * have been met’’, sec. 6330(c)(1),
                                      whether a notice of deficiency was properly mailed to peti-
                                      tioner. If the notice of deficiency was not properly mailed, the
                                      assessment of tax would be invalid. See sec. 6213(a); Hoyle
                                      v. Commissioner, 131 T.C. at 205. The act of mailing may be
                                      proven by documentary evidence of mailing. Coleman v.
                                      Commissioner, 94 T.C. 82, 91 (1990). We have held that exact
                                      compliance with Postal Service Form 3877 mailing proce-
                                      dures raises a presumption of official regularity in favor of
                                      the Commissioner and is sufficient, absent evidence to the
                                      contrary, to establish that a notice of deficiency was properly
                                      mailed. Id.; see also United States v. Zolla, 724 F.2d 808, 810
                                      (9th Cir. 1984). Ms. Magee was not limited to what the
                                      original Appeals officer considered. She was required to con-
                                      sider, pursuant to this Court’s order of remand, whether a
                                      notice of deficiency had been properly sent to petitioner.
                                      Hoyle v. Commissioner, supra at 205; see also Kelby v.
                                      Commissioner, supra at 86. The administrative record on
                                      remand contains such evidence in the form of a certified mail
                                      list. The certified mail list appears to include the same
                                      information found on Postal Service Form 3877. The
                                      administrative record on remand and the certified mail list
                                      are necessary for our consideration of the supplemental
                                      determination by respondent’s Appeals Office on remand and
                                      will at least be admitted into evidence for the limited pur-
                                      pose (as allowed by rule 105 of the Federal Rules of Evi-
                                      dence) of showing the proceedings on remand—a purpose for
                                      which they are not, strictly speaking, offered to prove the
                                      truth of the matter asserted therein. Consequently, the
                                      administrative record on remand shall be admitted as long as




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                                      it is authenticated pursuant to rule 901 of the Federal Rules
                                      of Evidence. If documents from the administrative record on
                                      remand are offered at trial for the additional purpose of
                                      proving the truth of the matters asserted therein, 5 hearsay
                                      and reliability objections can be addressed at that time.
                                         Petitioner cites the American Bar Association (ABA) Model
                                      Code of Judicial Conduct and the Tennessee Code of Judicial
                                      Conduct, Tennessee Supreme Court rule 10, for the propo-
                                      sition that communications between Ms. Nunnink and Ms.
                                      Magee were impermissible. Petitioner’s reliance on the ABA
                                      Model Code and the Tennessee code is misplaced. They do
                                      not govern the matters before us and are not applicable to
                                      the instant case.
                                         The Internal Revenue Service Restructuring and Reform
                                      Act of 1998 (RRA), Pub. L. 105–206, sec. 1001(a)(4), 112 Stat.
                                      689, directed the Commissioner to develop a plan to prohibit
                                      ex parte communications between Appeals Office employees
                                      and other Internal Revenue Service (IRS) employees that
                                      appear to compromise the independence of the Appeals offi-
                                      cers:
                                      The Commissioner of Internal Revenue shall develop and implement a
                                      plan to reorganize the Internal Revenue Service. The plan shall—

                                                               *    *  *   *    *   *   *
                                      (4) ensure an independent appeals function within the Internal Revenue
                                      Service, including the prohibition in the plan of ex parte communications
                                      between appeals officers and other Internal Revenue Service employees to
                                      the extent that such communications appear to compromise the independ-
                                      ence of the appeals officers.

                                         To fulfill that congressional mandate to ensure an inde-
                                      pendent Appeals Office, the Commissioner issued Rev. Proc.
                                      2000–43, 2000–2 C.B. 404, which is effective for communica-
                                      tions between employees of the Appeals Office and other IRS
                                      employees taking place after October 23, 2000. See Drake v.
                                      Commissioner, 125 T.C. 201, 208 (2005); Harrell v. Commis-
                                      sioner, T.C. Memo. 2003–271. According to Rev. Proc. 2000–
                                      43, supra, ex parte communications are communications that
                                      take place between the Appeals Office and another IRS office
                                      without the participation of the taxpayer or the taxpayer’s
                                        5 See, e.g., Sego v. Commissioner, 114 T.C. 604, 610–611 (2000) (relying on a copy of the notice

                                      and Postal Service Form 3877 to conclude, ‘‘[o]n the preponderance of the evidence, * * * that
                                      the statutory notice of deficiency was sent’’).




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                                      representative. Drake v. Commissioner, supra at 209. An
                                      Appeals officer may not engage in ex parte discussions of the
                                      strength and weakness of the issues of a case that would
                                      appear to compromise the Appeals officer’s independence. Id.
                                      The Appeals officer must give the taxpayer an opportunity to
                                      participate in any discussions concerning matters that are
                                      not ministerial, administrative, or procedural. Id.; Rev. Proc.
                                      2000–43, sec. 3, Q&A–6, 2000–2 C.B. at 406. However, Rev.
                                      Proc. 2000–43, supra, by its terms applies to communications
                                      between an attorney in the Office of Chief Counsel and an
                                      Appeals officer only in nondocketed cases; i.e., those cases
                                      where the taxpayer has not yet filed a petition with the Tax
                                      Court. Id. sec. 2, sec. 3, Q&A–11, 2000–2 C.B. at 404, 406–
                                      407. As the instant case is a docketed case, Rev. Proc. 2000–
                                      43, supra, does not apply directly to communications of Ms.
                                      Nunnink with Ms. Magee.
                                         During 2007 the IRS Office of Chief Counsel issued guide-
                                      lines covering communications between IRS Chief Counsel
                                      attorneys and Appeals officers when a case is remanded by
                                      the Tax Court. Chief Counsel Notice CC–2007–006 (Feb. 23,
                                      2007). That notice provided three guidelines to Chief Counsel
                                      attorneys: (1) Chief Counsel attorneys are to prepare a writ-
                                      ten memorandum explaining why the case was remanded
                                      and noting any special instructions in the order of remand
                                      and should provide a copy of the memorandum to the tax-
                                      payer; the memorandum is not to discuss the credibility of
                                      the taxpayer or the accuracy of the facts presented by the
                                      taxpayer; (2) a Chief Counsel attorney may provide legal
                                      advice to an Appeals officer as long as that attorney did not
                                      give legal advice to an originating function (e.g., collection)
                                      on the same issue in the same case; the legal advice should
                                      not opine on the ultimate legal issues; and (3) the Chief
                                      Counsel attorney who is handling the docketed case should
                                      review the supplemental notice of determination to ensure
                                      that it complies with the Tax Court’s order. Chief Counsel
                                      Notice CC–2007–006 (Feb. 23, 2007) was superseded and
                                      incorporated into Chief Counsel Notice CC–2009–010 (Feb.
                                      13, 2009), which expired on May 15, 2009. However, the
                                      procedural aspects of these Chief Counsel notices have been
                                      incorporated into the Internal Revenue Manual (IRM) as of




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                                      March 11, 2009. 6 See IRM pt. 8.22.2.3 (Mar. 11, 2009). One
                                      or more of these versions of the guidelines were in force
                                      throughout the period during which Ms. Magee considered
                                      petitioner’s case on remand.
                                         We conclude that the conversations between Ms. Nunnink
                                      and Ms. Magee were solely procedural, ministerial, or
                                      administrative. Ms. Nunnink did not opine on the ultimate
                                      issues or discuss petitioner’s credibility. Additionally, Ms.
                                      Nunnink did not question petitioner’s motives, suggest terms
                                      under which an offer-in-compromise would be accepted, or
                                      recommend that respondent secure all of petitioner’s assets.
                                      See Drake v. Commissioner, 125 T.C. at 209 (improper ex
                                      parte communication where memorandum to Appeals officer
                                      questioned motives of taxpayer’s counsel); Indus. Investors v.
                                      Commissioner, T.C. Memo. 2007–93 (cover letter to Appeals
                                      officer was improper ex parte communication because letter
                                      told Appeals officer not to consider CDP hearing for pre-
                                      viously filed lien, recommended that Government secure all
                                      assets owned by taxpayer, and suggested terms under which
                                      offer-in-compromise would be accepted). Rather, Ms.
                                      Nunnink provided legal advice on specific issues, such as
                                           6 In   relevant part, Internal Revenue Manual pt. 8.22.2.3 (Mar. 11, 2009) states:
                                      6. In Chief Counsel Notice (CC–2007–006), the IRS provided guidance on the application of the
                                      ex parte rules to communications between Chief Counsel attorneys and the hearing office when
                                      a CDP case is remanded by the Tax Court.
                                      7. The following guidelines apply when a CDP case is remanded. The Counsel attorney working
                                      the docketed case should prepare a written memorandum addressed to the Office of Appeals ex-
                                      plaining:
                                        A. the reasons why the court remanded the case to Appeals,
                                        B. any special requirements in the order (e.g., whether and to what extent to hold a new con-
                                      ference and whether the case must be reassigned to a new hearing officer),
                                        C. what issues the court has ordered Appeals to address on remand.
                                      Note:
                                      The memorandum should not discuss the credibility of the taxpayer or the accuracy of the facts
                                      presented by the taxpayer.
                                      8. A request by a hearing officer for legal advice in connection with the remanded CDP case
                                      may be handled by the Counsel attorney who is handling the docketed Tax Court case, so long
                                      as that attorney did not give legal advice to an originating function (e.g., Collection) concerning
                                      the same issue in the same case. If the Counsel attorney provided such advice, Counsel should
                                      assign the request to another Counsel attorney who has not previously provided advice to a
                                      Service office concerning the same issue in the same case. Counsel should carefully tailor any
                                      legal advice to only answer the legal questions posed by Appeals, and the advice should not
                                      opine on how you should ultimately decide the issues in the Supplemental NOD. Consistent
                                      with Q&A11 of Rev. Proc. 2000–43, the advice does not have to be shared with the taxpayer
                                      or his representative at the time it is rendered. Also, neither the taxpayer nor his representative
                                      have a right to participate in any discussions between Appeals and Counsel with respect to the
                                      advice.




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                                      whether petitioner could challenge the underlying liability if
                                      he had received a notice of deficiency. We do not believe that
                                      such legal advice constitutes prohibited ex parte communica-
                                      tions that should have been shared with petitioner.
                                         Ms. Nunnink’s review of Ms. Magee’s draft supplemental
                                      notice of determination was not an impermissible ex parte
                                      communication. Ms. Nunnink’s comments were meant to
                                      ensure that the supplemental notice of determination on
                                      remand complied with our order of December 19, 2008. For
                                      example, Ms. Nunnink asked Ms. Magee to clarify her posi-
                                      tion in the supplemental notice of determination and asked
                                      her to attach additional documents.
                                         Additionally, Ms. Nunnink’s inclusion of the certified mail
                                      list in the administrative record on remand was ministerial,
                                      procedural, or administrative. See Rev. Proc. 2000–43, sec. 3,
                                      Q&A–6. We remanded this case to the Appeals Office specifi-
                                      cally for the purpose of having it ‘‘[clarify] the record
                                      regarding the issue of what the Appeals officer relied upon
                                      in determining that the notice of deficiency was properly sent
                                      to petitioner.’’ Given our mandate on remand, Ms. Nunnink’s
                                      actions were not prohibited ex parte communications. Evi-
                                      dence of a certified mail list is precisely what the Court
                                      sought by remand. Ms. Nunnink’s actions in finding the cer-
                                      tified mail list and placing it in the administrative record on
                                      remand do not ‘‘appear to compromise the independence of
                                      the appeals [officer].’’ See RRA sec. 1001(a)(4). Moreover, peti-
                                      tioner was sent a copy of the letter to Mr. Whitely, which
                                      gave him notice of the addition of the certified mail list to the
                                      administrative record on remand and allowed him to raise
                                      that issue with Ms. Magee.
                                         Accordingly, we conclude that Ms. Nunnink and Ms. Magee
                                      did not engage in prohibited ex parte conduct or communica-
                                      tions.
                                         Respondent has provided notice to petitioner that he seeks
                                      to introduce the administrative record on remand into evi-
                                      dence. Petitioner objects to the admission into evidence of the
                                      administrative record on remand on the basis that it is
                                      inadmissible hearsay that lacks trustworthiness.
                                         We need not rule on petitioner’s hearsay objection at this
                                      time because the initial consideration by this Court of the
                                      administrative record on remand will be for the limited pur-
                                      pose, see Fed. R. Evid. 105, of establishing what information




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                                      was available to the Appeals Office when preparing the
                                      supplemental notice of determination; and, for that purpose,
                                      admission of the administrative record on remand for the
                                      truth of the matters contained therein is not necessary. We
                                      note that if respondent offers documents from that record at
                                      trial for the truth of the matters contained therein, petitioner
                                      may make any appropriate objections at that time. We also
                                      note that, absent stipulation of the administrative record on
                                      remand, respondent must authenticate it at trial.
                                         Petitioner also contends that respondent may not refile the
                                      NFTL. Respondent contends that he may refile the NFTL
                                      pursuant to section 6325(f).
                                         Pursuant to section 6321, if a person liable for a tax fails
                                      to pay it after a demand for payment is made, a lien arises
                                      in favor of the United States upon all property and rights to
                                      property belonging to such person for the unpaid amount,
                                      including interest. The lien arises when the tax is assessed
                                      and continues until the underlying liability is satisfied or
                                      becomes unenforceable by reason of lapse of time. Sec. 6322.
                                      Section 6323 authorizes the Commissioner to file notice of
                                      that lien; i.e., an NFTL. The NFTL establishes the lien’s pri-
                                      ority over subsequent buyers of the property, holders of secu-
                                      rity interests in the property, judgment-lien creditors, and
                                      mechanic’s lienholders. See sec. 6323(a).
                                         Generally, an NFTL must be refiled during the 1-year
                                      period ending 10 years and 30 days after the date of assess-
                                      ment (the refiling period). Sec. 6323(g). If the Commissioner
                                      fails to refile the NFTL during the refiling period, the NFTL
                                      generally is not effective after the expiration of that period
                                      against any person with an interest in property subject to
                                      the lien. Sec. 301.6323(g)–1(a)(3), Proced. & Admin. Regs.
                                      However, section 301.6323(g)–1(a)(3)(i), Proced. & Admin.
                                      Regs., provides an exception to this general rule: the failure
                                      to refile the NFTL during the refiling period will not affect the
                                      effectiveness of the NFTL with respect to property that is the
                                      subject matter of a suit filed before the expiration of the re-
                                      filing period to which the Government is a party. 7 Even if
                                        7 On Apr. 4, 2011, the IRS released final regulations amending portions of sec. 301.6323(g)–

                                      1(a), Proced. & Admin. Regs. T.D. 9520, 2011–18 I.R.B. 730. Those amendments apply to any
                                      NFTL filed on or after Apr. 4, 2011. Under the amended regulations, the release of a Federal
                                      tax lien on property that is the subject of litigation to which the Government is a party will
                                      not affect the Government’s priority in such property as long as the suit was commenced before
                                                                                                   Continued




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                                      474                136 UNITED STATES TAX COURT REPORTS                                        (463)


                                      the NFTL is not refiled during the refiling period, provided
                                      the lien remains in existence the Commissioner may still file
                                      a new NFTL, which will be effective from the date it is filed.
                                      Sec. 301.6323(g)–1(a)(4), Proced. & Admin. Regs.
                                         The Commissioner may withdraw an NFTL before the
                                      underlying tax is paid if it is determined that: (1) The NFTL
                                      was prematurely filed or otherwise not in accordance with
                                      IRS procedures; (2) the taxpayer has agreed to an installment
                                      agreement; (3) withdrawal of the NFTL will facilitate collec-
                                      tion; or (4) withdrawal of the NFTL is in the best interests of
                                      the taxpayer and the United States. Sec. 6323(j)(1). With-
                                      drawal does not affect the underlying lien. Sec. 301.6323(j)–
                                      1(a), Proced. & Admin. Regs.
                                         The Commissioner must issue a certificate releasing a lien
                                      within 30 days after he determines that the entire tax
                                      liability (including interest) has been paid or becomes legally
                                      unenforceable, or if the taxpayer posts an acceptable bond.
                                      Sec. 6325(a). If the Commissioner determines that a certifi-
                                      cate of release was issued improvidently or erroneously and
                                      if the period of limitations for collecting the underlying
                                      liability has not expired, the Commissioner may revoke the
                                      certificate of release and reinstate the lien. Sec. 6325(f)(2). A
                                      certificate of release is not conclusive proof that the liability
                                      is extinguished. See Boyer v. Commissioner, T.C. Memo.
                                      2003–322. The underlying tax liability that is the subject of
                                      the NFTL remains until the tax is paid in full or the period
                                      of limitations on collection expires. See id.; sec. 301.6325–
                                      1(a)(1), Proced. & Admin. Regs.
                                         Generally, the Commissioner has 10 years from the date of
                                      assessment to collect the tax due. Sec. 6502(a). However, if
                                      the taxpayer requests an administrative review of an NFTL,
                                      the period of limitations is suspended during the period of
                                      that hearing, and appeals therein. Secs. 6320(c), 6330(e).
                                         On August 26, 1996, respondent assessed the tax in issue.
                                      Petitioner timely requested an administrative review of the
                                      original NFTL, and subsequently, in the instant case,
                                      requested judicial review of that proceeding. As a decision in
                                      the instant case has not yet become final, the period of
                                      limitations on collection remains suspended. See secs.
                                      6320(c), 6330(e). The original NFTL indicated that unless
                                      the date the lien was released. Sec. 301.6323(g)–1(a)(3)(i), Proced. & Admin. Regs.




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                                      (463)                          HOYLE v. COMMISSIONER                                          475


                                      refiled by September 25, 2006, it would constitute a certifi-
                                      cate of release of lien. The NFTL was not refiled by that date.
                                      On March 3, 2009, respondent filed a revocation of certificate
                                      of release of Federal tax lien and immediately thereafter
                                      refiled the NFTL. Consequently, respondent refiled the NFTL
                                      within the limitations period for collection.
                                         Respondent’s lien for the underlying tax reflected in the
                                      NFTL remains in existence because the period of limitations
                                      on collections has been suspended by the instant proceedings.
                                      See secs. 6322, 6330(e). The NFTL was refiled with the Clerk
                                      of Court of Jefferson Parish, Louisiana, in accordance with
                                      section 6323(f). 8 See La. Rev. Stat. Ann. sec. 52:52 (2004).
                                      Consequently, we conclude that respondent’s refiling of the
                                      NFTL is not grounds for dismissal of the instant case in peti-
                                      tioner’s favor. Accordingly, we will deny petitioner’s motion
                                      to dismiss respondent’s lien.
                                         To reflect the foregoing,
                                                                                 An appropriate order will be issued.

                                                                               f




                                       8 Petitioner does not contend that respondent failed to follow proper procedures in refiling the

                                      NFTL.




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