Opinion
7458-19L
08-20-2021
John W. Germaine, Petitioner v. Commissioner of Internal Revenue, Respondent
ORDER
Alina I. Marshall, Judge
This case was commenced in response to a Notice of Determination Concerning Collection Actions Under Section 6330 and Your Request for Relief from Joint and Several Liability under Section 6015 (notice of determination), sustaining the Internal Revenue Service's (IRS) proposed levy detailed in a Notice CP90, Intent to seize your assets and notice of your right to a hearing, in order to collect petitioner's unpaid Federal income tax liability for 2013 (levy notice).Before the Court is respondent's motion for partial summary judgment, filed April 28, 2020 (respondent's motion).
Unless otherwise indicated, all section references are to the Internal Revenue Code of 1986, as amended and in effect at all relevant times. All Rule references are to the Tax Court Rules of Practice and Procedure.
The issues for decision with respect to the 2013 tax year are whether: (1) petitioner may challenge the deficiency of $94; (2) petitioner may challenge the overstated withholding adjustment of $9,279; (3) petitioner is entitled to innocent spouse relief under either section 6015(b) or (c); and (4) Settlement Officer Natalie Krueger (SO Krueger) abused her discretion in determining that the proposed collection action in the levy notice could proceed, as set forth in the notice of determination.
BACKGROUND
The following facts are from the parties' pleadings and other materials in the record, including a declaration of SO Krueger with attached exhibits.
Petitioner, a married individual, resided in Tennessee when he timely filed his petition. Petitioner and his wife timely filed a joint Form 1040, U.S. Individual Income Tax Return, for the 2013 tax year (2013 joint return). The 2013 joint return reported that petitioner had no Federal income tax liability. Petitioner also claimed a withholding credit of $9,279, for which petitioner received a refund.
Petitioner's 2013 joint return was selected for audit. On November 2, 2015, the Commissioner sent to petitioner a CP2000, Changes to your 2013 Form 1040, detailing proposed adjustments to the 2013 joint return. The CP2000 stated that petitioner owed $9,833 for 2013, which included a deficiency of $94, an underpayment resulting from an overstated withholding credit of $9,279, and interest of $460. After petitioner failed to respond to the CP2000, the Commissioner issued a Notice of Deficiency, dated January 4, 2016, setting forth the Commissioner's determination that petitioner owed a deficiency of $94. The notice of deficiency contained explanations of the Commissioner's adjustments, including a paragraph explaining that the Commissioner determined that petitioner's claimed withholding credit of $9,279 was overstated in its entirety, resulting in an underpayment of tax in the amount of the claimed credit.
Specifically, the notice of deficiency stated that "income tax withheld, line 62" was $9,279 as shown on the return but $0 as corrected by the Commissioner, resulting in an underpayment of $9,279. In a paragraph titled "Overclaimed withholding", the Commissioner explained that: "Our records indicate that you are entitled to a lesser amount of withholding * * * than the amount claimed on your tax return. Please send us a copy of Form(s) W-2, Wage and Tax Statement, 1099, and/or other withholding documentation from the payer(s) to verify the additional withholding claimed on your tax return."
After receiving the notice of deficiency, petitioner made a payment of $94 to the Commissioner in January 2016. On April 26, 2016, petitioner filed a petition with the Court to initiate a deficiency proceeding, Docket No. 9902-16. Petitioner failed to comply with the Court's order to pay the filing fee and file an amended petition in accordance with the Court's Rules and, as a result, the Court dismissed petitioner's deficiency case.
On December 11, 2017, the Commissioner sent to petitioner the levy notice, which explained to petitioner that the Commissioner planned to initiate levy activities to collect petitioner's unpaid Federal tax liability for 2013. On January 8 and 11, 2018, the IRS received duplicate Forms 12153, Request for a Collection Due Process or Equivalent Hearing, from petitioner requesting a collection due process (CDP) hearing with the IRS Office of Appeals (IRS Appeals). On the Forms 12153, petitioner requested an offer in compromise as a collection alternative, a lien withdrawal, and innocent spouse relief. Petitioner also noted on the Forms 12153 that the "payment [was] completed".
On January 9, 2018, petitioner filed a complaint in the United States District Court for the Middle District of Tennessee (Tennessee civil case). Complaint, Germaine v. United States, No. 3:18-CV-00031, 2021 WL 164782 (M.D. Tenn. Jan. 19, 2021). As amended, the complaint names as defendants the United States, the IRS, the Attorney General of the United States, Huber + Suhner, Inc., and Raymond James Financial, Inc., making a host of allegations with respect to petitioner's tax liabilities and his retirement funds. Id. On July 1, 2019, the court in the Tennessee civil case entered an order granting the motions to dismiss filed by Huber + Suhner, Inc. and Raymond James Financial, Inc., dismissing them from the action. Germaine v. United States, No. 3:18-CV-00031, 2019 WL 2725230 (M.D. Tenn. July 1, 2019). On December 2, 2019, United States Magistrate Judge Barbara D. Holmes filed a Report and Recommendation, recommending that petitioner's Tennessee civil case be dismissed with prejudice under Rule 16(b) of Federal Rules of Civil Procedure. Germaine v. United States, No. 3:18-0031, 2019 WL 11031646 (M.D. Tenn. Dec. 2, 2019). On January 19, 2021, the Chief United States District Judge Waverly D. Crenshaw, Jr. entered an order adopting the Report and Recommendation and dismissed the Tennessee civil case with prejudice. Germaine v. United States, No. 3:18-CV-00031, 2021 WL 164782. Judgment was entered in accordance with the dismissal order.
With respect to petitioner's Forms 12153, Settlement Officer Susan Vitagliano (SO Vitagliano) was assigned to conduct petitioner's CDP hearing. On April 25, 2018, she sent petitioner a letter explaining the CDP hearing process and requesting various documents with respect to the issues petitioner raised in his Forms 12153. In the letter, SO Vitagliano stated that lien withdrawal was premature because the Commissioner did not file a Notice of Federal Tax Lien. She also warned petitioner about making frivolous arguments.
Petitioner and SO Vitagliano held a conference call on June 14, 2018. She reiterated to him that no Notice of Federal Tax Lien was filed, that collection alternatives were not available until petitioner submitted the requested forms and financial documents, and that petitioner needed to submit a form to be considered for innocent spouse relief. SO Vitagliano also explained to petitioner that he was not entitled to challenge the underlying tax liability for 2013 because a notice of deficiency was issued for that year. Petitioner argued that he had submitted payment to the IRS for $94 and therefore the tax for 2013 was paid in full. SO Vitagliano explained to petitioner that the $94 listed on the notice of deficiency was just the increase in tax, and that the notice of deficiency together with the CP2000 stated that tax for 2013 was still owing as a result of the overstated withholding credit claimed. SO Vitagliano's case notes state that petitioner then switched gears, arguing that he worked in China during 2013, paid Chinese taxes, and was not required to pay Federal income tax. SO Vitagliano reiterated that she was not able to consider the underlying tax liability for 2013 because a notice of deficiency was issued for 2013. Lastly, SO Vitagliano proposed to petitioner an installment agreement as a collection alternative. After the call, SO Vitagliano sent to petitioner the documentation for the proposed installment agreement, but petitioner never returned it.
On July 9, 2018, petitioner completed a Form 8857, Request for Innocent Spouse Relief. On line 6 of the Form 8857, petitioner noted that he was "Married and still living together" with his spouse. Petitioner also noted on Form 8857 that his spouse did not understand taxes or tax law, and that petitioner completed the joint return without his spouse's assistance or knowledge. On line 14 of the Form 8857, petitioner did not assert lack of knowledge that any item on the return was wrong or missing. Instead, petitioner asserted that there was no missing or incorrect information on the return, and that his wife had no income. Also on July 9, 2018, petitioner submitted a Form 656-L, Offer in Compromise (Doubt as to Liability), where he offered to pay $1,000 "[a]s [a] good faith gesture only". After petitioner submitted Form 8857 requesting innocent spouse relief, petitioner's CDP hearing was reassigned to SO Krueger.
On January 29, 2019, SO Krueger sent petitioner a letter proposing a conference call on March 6, 2019. In the letter, SO Krueger requested that petitioner complete Form 433-A, Collection Information Statement, and provide proof of filing a tax return for the 2017 tax year if petitioner wished to be considered for any collection alternative. SO Krueger did not receive any of the requested documents from petitioner by March 6, 2019, and petitioner was not available to meet when she tried calling him at the proposed meeting time. She sent a follow-up letter the same day giving petitioner additional time to provide the requested information.
SO Krueger did not receive the requested information. Instead, she received a letter from petitioner, dated February 25, 2019, addressing his Tennessee civil case, complaining generally about his interactions with the IRS, and demanding a face-to-face meeting. In her case notes, SO Kreuger states that she received multiple voicemails from petitioner on March 6 and 8, 2019, in which petitioner demanded face-to-face meetings and stated that he refused to meet over the phone. SO Krueger determined that petitioner was not eligible for a face-to-face meeting because he was not in compliance with this tax return filing requirements and failed to provide requested financial information. In late March, SO Krueger received another letter from petitioner that was similar to his February 25, 2019 letter. Because petitioner did not include any of the requested documents or financial information, SO Krueger decided to issue the notice of determination with respect to the levy notice.
On April 26, 2019, SO Krueger issued the notice of determination, sustaining the proposed collection action detailed in the levy notice. SO Krueger verified that the assessments for 2013 were valid for 2013, and that there was a balance due. SO Krueger determined that the notice of deficiency precluded petitioner from contesting the underlying tax liability for 2013. SO Krueger also verified that the levy notice as well as the notice and demand for payment letter was sent to petitioner's last known address, and that there was not a collection alternative or bankruptcy case pending that would affect the proposed collection action. SO Krueger determined that petitioner was not eligible for uncollectable status or a collection alternative because he failed to provide requested financial information and was not in compliance with his filing requirements. Lastly, SO Krueger noted that petitioner's request for innocent spouse relief was denied. In balancing the need for efficient collection of tax with the taxpayer's concern that collection action be no more intrusive than necessary, SO Krueger determined that the proposed levy should proceed.
The notice of determination states in the "Summary of Determination" that: "[a]ll legal and procedural requirements were met prior to the issuance of the Notice of Intent to Levy, and the Appeals Officer concludes that issuance of the Notice of Intent to Levy was appropriate. However, the proposed levy action is not sustained in [IRS] Appeals. Please find further details contained in the attachment to this letter." Respondent asserts that the word "not" was mistakenly included before the word "sustained". The Appeals Case Memorandum, Attachment to Letter 4390, includes detailed explanations for why the proposed collection action was appropriate, including an explanation that the verification requirements under secs. 6330(c)(1) and (3) were satisfied, that petitioner was not eligible for collection alternatives, that petitioner was not eligible for innocent spouse relief, that petitioner could not challenge the underlying liability, and a statement that the proposed collection action balanced the need for efficient collection of taxes with the taxpayer's concern that the collection action be no more intrusive than necessary. Additionally, SO Krueger's declaration, case notes, and Appeals Transmittal and Case Memo - CDP indicate that the ultimate determination was to sustain the proposed collection action.
Petitioner filed a petition with the Court, challenging SO Krueger's determinations in the notice of determination.
DISCUSSION
Respondent's motion asks us to sustain several of SO Krueger's determinations in the notice of determination. First, respondent asks us to decide on summary judgment that petitioner may not challenge the deficiency of $94 or the overstated withholding adjustment of $9,279 for the 2013 tax year. Second, respondent asks us to hold that petitioner is not entitled to innocent spouse relief under either section 6015(b) or (c). Finally, respondent asks us to decide on summary judgment that SO Krueger did not abuse her discretion in sustaining the proposed levy action. If we answer these questions in respondent's favor, he argues that the only question remaining for trial is whether petitioner is entitled to innocent spouse relief under section 6015(f). Petitioner objected to respondent's motion but failed to address any of respondent's arguments specifically. Instead, he referred us to his Tennessee civil case and argued that the merits of his dispute with the IRS must reside in the United States District Court for the Middle District of Tennessee.
I. Summary Judgment Standard
The purpose of summary judgment is to expedite litigation and avoid costly, time-consuming, and unnecessary trials. Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). A motion for partial summary judgment may be granted where there is no genuine dispute as to any material fact, and a decision may be rendered as a matter of law. Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff'd, 17 F.3d 965 (7th Cir. 1994). Partial summary adjudication is proper where some but not all the issues in the case may be disposed of summarily. Rule 121(b).
Where a motion for summary judgment has been properly made and supported, the nonmoving party "may not rest upon the mere allegations or denials of such party's pleadings" but must "set forth specific facts showing that there is a genuine dispute for trial" by affidavits or otherwise. Rule 121(d); Dahlstrom v. Commissioner, 85 T.C. 812, 820-821 (1985). The moving party bears the burden of showing that there is no genuine dispute as to any material fact, and any factual inferences are drawn in a manner most favorable to the party opposing summary judgment. Dahlstrom v. Commissioner, 85 T.C. at 821. "If there exists any reasonable doubt as to the facts at issue, the motion must be denied." Sundstrand Corp. v. Commissioner, 98 T.C. at 520.
II. Jurisdiction and Standard of Review
This is a Court of limited jurisdiction; we exercise our jurisdiction only as explicitly authorized by statute. Sec. 7442; Naftel v. Commissioner, 85 T.C. 527, 529 (1985). Section 6330(d)(1) grants the Court jurisdiction to review the Commissioner's determinations to proceed with a proposed collection action made in a notice of determination. See DAF Charters, LLC v. Commissioner, 152 T.C. 250, 256 (2019). If the taxpayer files a timely petition for such judicial review, the applicable standard of review depends on whether the underlying tax liability is at issue. DAF Charters, LLC v. Commissioner, 152 T.C. at 256. Where the taxpayer's underlying tax liability is properly at issue, the Court reviews the liability determination de novo. Sego v. Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C. 176, 181-182 (2000). The Court reviews administrative determinations made by IRS Appeals regarding nonliability issues for abuse of discretion. Sego v. Commissioner, 114 T.C. at 610; Goza v. Commissioner, 114 T.C. at 182.
In petitioner's response to respondent's motion filed July 10, 2020, petitioner argues that this Court lacks jurisdiction because his disagreement with the IRS must be addressed in his Tennessee civil case, citing paragraph 1 of 28 U.S.C. section 1346(a) (2018). Petitioner argues that he was coerced by the notice of determination to file the petition that commenced this case. Because there was a timely petition in response to a valid notice of determination, we hold that we have jurisdiction in this case. This case is not a refund suit under 28 U.S.C. section 1346. See Flora v. United States, 362 U.S. 145, 175-177 (1960). Rather, petitioner initiated this CDP proceeding, in which he may ask the Court to review respondent's determinations in the notice of determination. Petitioner has not filed a motion asking the Court to dismiss his case, and the Court has jurisdiction.
We note that petitioner's Tennessee civil case was dismissed with prejudice. Germaine v. United States, No. 3:18-CV-00031, 2021 WL 164782 (M.D. Tenn. Jan. 19, 2021).
Additionally, we hold that the typographical error in the notice of determination, supra note 3, does not impact our jurisdiction in this case. We have held that the only statutory requirements for jurisdiction under sec. 6330(d)(1)(A) are "a written notice that embodies a determination to proceed with the collection of the taxes in issue, and a timely filed petition." Lunsford v. Commissioner, 117 T.C. 159, 164 (2001). Further, we have held that "a flaw in a jurisdictional notice is not fatal if the notice, along with any attachments, is sufficient to apprise the taxpayer of the Commissioner's determination and the taxpayer was not prejudiced or misled by the flaw." LG Kendrick, LLC v. Commissioner, 146 T.C. 17, 29-30 (2016) (citing John C. Hom & Assocs., Inc. v. Commissioner, 140 T.C. 210, 213 (2013)); see also McCollin v. Commissioner, T.C. Memo. 2010-93, slip op. at 2 n.2 (holding that a notice of determination was valid when an attachment to the notice referred to an incorrect year but the notice itself and other relevant documents contained the correct year); Call v. Commissioner, T.C. Memo. 2005-289, slip op. at 17 n.3 (holding that a typographical error in the notice of determination erroneously referring to 1999 as 1990 did not affect the notice). Here, the attachment to the notice of determination indicates in all respects that SO Krueger's determination was to sustain the proposed collection action. Petitioner did not object or call into question the typographical error, and there is no indication that he was misled as to SO Krueger's determination to sustain the proposed collection action.
III. $94 Deficiency
Respondent argues in respondent's motion that petitioner is precluded from challenging the $94 deficiency for 2013 before the Court because petitioner received a notice of deficiency with respect to his 2013 tax year, as evidenced by his filing of a petition with the Court.
A taxpayer may raise at his CDP hearing, and then before the Court, "challenges to the existence or amount of the underlying tax liability for any tax period if the person did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability." Sec. 6330(c)(2)(B); see sec. 301.6330-1(e)(3), Q&A-E2, Proced. & Admin. Regs.; Kuykendall v. Commissioner, 129 T.C. 77, 80 (2007). Petitioner received a notice of deficiency with respect to his 2013 tax year and may not challenge the $94 deficiency for 2013 in this case.
IV. $9,279 Withholding Tax Credit
In respondent's motion, he argues that petitioner is precluded from challenging the $9,279 withholding tax credit for 2013 before the Court. Respondent states that petitioner did not raise any valid dispute indicating that he believed respondent incorrectly calculated his withholding credit adjustment and he failed to present any evidence on this issue to IRS Appeals. Respondent cites Giamelli v. Commissioner, 129 T.C. 107 (2007), to argue that petitioner may not raise the $9,279 withholding tax credit before the Court because petitioner failed to present IRS Appeals with any evidence addressing the withholding credit adjustment.
We cannot conclude that respondent is entitled to judgment as a matter of law on the basis of Giamelli. The attachment to the notice of determination states: "[t]he taxpayer challenged the existence and amount of the liability within an attachment to the Form 12153, Request for a Collection Due Process or Equivalent Hearing. The taxpayer was precluded from raising the liability issue during this CDP hearing process due to a prior opportunity and was advised as such by the original Appeals Officer assigned the case."
Reading the attachment to the notice of determination in the light most favorable to the taxpayer, it might be that petitioner raised the $9,279 withholding at his IRS Appeals conference but was not permitted to provide evidence. This interpretation of the attachment to the notice of determination would not permit the Court to hold for respondent on summary judgment on the basis of Giamelli.
In respondent's motion, respondent does not address whether petitioner is entitled to raise the $9,279 withholding tax credit as a challenge to his underlying liability under section 6330(c)(2)(B). Respondent also does not address whether petitioner's arguments with respect to this amount might be reviewed as a verification issue pursuant to section 6330(c)(1) rather than an underlying liability issue pursuant to section 6330(c)(2)(B). See Dixon v. Commissioner, 141 T.C. 173, 183-184, 184 n.6 (2013). We will not grant summary judgment on this issue because respondent's reliance on Giamelli does not entitle him to judgment as a matter of law.
V. Innocent Spouse Relief
At the CDP hearing, petitioner unsuccessfully sought innocent spouse relief under section 6015. In respondent's motion, respondent argues that he is entitled to partial summary judgment on the issue of whether petitioner is entitled to innocent spouse relief under either section 6015(b) or (c) with respect to his underlying tax liability for the 2013 tax year. Respondent's argument is that petitioner does not challenge the $94 deficiency and that the $9,279 overstated withholding tax credit is not an understatement of tax (as defined by section 6662(d)(2)(A)) or a deficiency (as defined by section 6211). See secs. 6015(b)(3), (c)(1). Respondent offers little support for these positions, and petitioner fails to respond. Nevertheless, viewing the proposed evidence in the case in the light most favorable to petitioner, we hold that petitioner is not entitled to relief under either section 6015(b) or (c) on the basis of his statements to the IRS and to the Court.
Generally, married taxpayers may elect to file a joint Federal income tax return. Sec. 6013(a). After making the election, each spouse is jointly and severally liable for the entire tax due for that year. Sec. 6013(d)(3). In certain circumstances, however, a spouse who has filed a joint return may seek relief from joint and several liability under procedures set forth in section 6015. Sec. 6015(a).
Section 6015 provides three types of relief from joint and several liability: (1) full or apportioned relief under section 6015(b); (2) proportionate relief for divorced or separated taxpayers under section 6015(c); and (3) equitable relief under section 6015(f) when relief is unavailable under either section 6015(b) or (c). A taxpayer may request innocent spouse relief during a CDP hearing. Sec. 6330(c)(2)(A)(i); sec. 301.6330-1(e)(2), Proced. & Admin. Regs. Petitioner filed a Form 8857 during his CDP hearing and the Commissioner considered petitioner for all three types of innocent spouse relief.
A. Relief under Section 6015(b)
To qualify for relief under section 6015(b), the electing spouse must establish, inter alia, that: (1) a joint return has been made for a taxable year; (2) there is an understatement of tax on the return which is attributable to the erroneous items of the nonelecting spouse; (3) in signing the return, the electing spouse did not know, and had no reason to know, that there was such an understatement; and (4) taking into account all the facts and circumstances, it is inequitable to hold the electing spouse liable for the deficiency in tax for the taxable year attributable to the understatement. Sec. 6015(b)(1); see Alt v. Commissioner, 119 T.C. 306, 313 (2002).
Petitioner has not shown that there is a genuine dispute for trial with respect to whether he is entitled to relief under section 6015(b). Indeed, petitioner's uncontroverted statements in his Form 8857 show that he is not entitled to relief under section 6015(b). Petitioner stated that his spouse did not have any income for 2013. As a result, there is no understatement of tax attributable to the erroneous items of petitioner's spouse for which petitioner could be granted relief. See sec. 6015(b)(1)(B). He further stated that he "filled out the returns without any assistance or knowledge of my wife" and that he asked her to sign the return "despite her inability as a foreign born citizen with disabilities and her inability to understand U.S. taxes and tax rules." He affirms these statements in his letter to the Court, dated May 6, 2020, where he refers to his wife's "cultural issues involving her inability to understand written English". As the sole preparer of the 2013 joint return, he knew or had reason to know of any resulting understatement of tax. See sec. 6015(b)(1)(C). We conclude that petitioner is not eligible for relief under section 6015(b) and that respondent is entitled to judgment as a matter of law on this issue.
B. Relief under Section 6015(c)
An individual is eligible to elect the application of section 6015(c) only if: (1) at the time the election is filed, the electing individual is no longer married to, or is legally separated from, the other individual who filed the joint return; or (2) the electing individual was not a member of the same household as the other individual at any time during the 12-month period ending on the date the election is filed. Sec. 6015(c)(3)(A)(i).
Petitioner has not shown that there is a genuine dispute for trial on the issue of whether he is eligible for relief under section 6015(c). Petitioner was still married to and living with his spouse at the time he requested relief during the CDP hearing. Based on the administrative record and petitioner's filings in this case, he is still married to his wife. Therefore, he is not eligible for innocent spouse relief under section 6015(c). See sec. 6015(c)(3)(A)(i). Respondent is entitled to judgment as a matter of law on this issue.
Respondent has not moved for summary judgment on the issue of whether petitioner should be granted equitable relief under section 6015(f). Therefore, this issue will remain for trial.
Respondent states at the outset of respondent's motion that the issue of whether petitioner is entitled to relief under sec. 6015(f) is an issue that will remain for trial. Later in respondent's motion, however, he briefly invites the Court to conclude that petitioner has conceded that issue under Rule 34(b)(4) by not raising it with sufficient specificity in his petition. We decline this invitation and conclude that petitioner's mention of innocent spouse relief in his petition is sufficient.
VI. Collection Action
In a CDP hearing, the settlement officer must verify that the requirements of any applicable law or administrative procedure have been met, consider issues properly raised by the taxpayer, and consider whether the proposed collection action balances the need for the efficient collection of taxes with the taxpayer's legitimate concern that any collection action be no more intrusive than necessary. See secs. 6330(b), (c)(3). The taxpayer bears the burden of proving that the settlement officer's determinations were arbitrary, capricious, or without sound basis in fact or law. Rule 142(a); Woodral v. Commissioner, 112 T.C. 19, 23 (1999). In respondent's motion, he argues that there are no disputes of material fact and that he is entitled to judgment as a matter of law that the settlement officer did not abuse her discretion in sustaining the proposed levy.
In the petition and his response to respondent's motion, petitioner identified a few objections to the IRS's handling of his case before and during the IRS Appeals hearing. While a number of petitioner's assertions appear confused or incorrect, we note at least one area of uncertainty: the propriety of respondent's actions with respect to the social security levy.
Petitioner argues that respondent erred in levying on his social security benefits. On review of the record, it appears that the IRS levied $114.47 from petitioner's social security benefits in December 2017, after sending petitioner the levy notice and before the IRS Appeals received petitioner's timely Forms 12153 requesting a CDP hearing.
Respondent addresses this item in respondent's motion, explaining:
[t]his levy was issued against petitioner's individual account that was created at the conclusion of his Tax Court deficiency case (MFT31) as opposed to the joint account (MFT30) that is the subject of the CDP hearing in this case. As a result, SO Vitagliano informed petitioner that she could not consider this payment because she only had authority to consider petitioner's joint account (MFT30). Exs. A and B.
Based on the record before us and respondent's failure to offer statutory, regulatory, or caselaw citations addressing the levy, we are unable to conclude as a matter of law that SO Krueger did not abuse her discretion in determining that the requirements of any applicable law and administrative procedure have been met. Because we are unable to determine whether respondent abused his discretion in this regard, we deny respondent's motion with respect to the issue of whether SO Krueger abused her discretion in making the determination to sustain the proposed levy.
Upon due consideration of the parties' arguments, and for the reasons stated above, it is
ORDERED that respondent's motion for partial summary judgment, filed April 28, 2020, is granted in that the Court holds that petitioner may not challenge the deficiency of $94 and petitioner is not entitled to innocent spouse relief under section 6015(b) or (c) for the 2013 tax year. It is further
ORDERED that respondent's motion for partial summary judgment, filed April 28, 2020, is otherwise denied. It is further
ORDERED that, on or before September 10, 2021, the parties shall file a joint status report reflecting the status of this case and reporting the parties' views on setting a date and time certain for a remote trial at the Court's remote trial session, during either the week of October 18 or December 6, 2021.