Opinion
25576-16L
01-02-2024
BRENT JASON, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND DECISION
L. Paige Marvel Judge
This matter is before the Court on respondent's Motion for Summary Judgment, filed July 22, 2021. By Order dated July 28, 2021, we directed petitioner Brent Jason to file a response to the Motion for Summary Judgment by August 25, 2021. Petitioner subsequently filed a Motion for Extension of Time to File Response to Motion for Summary Judgment, and by Order dated September 2, 2021, we granted petitioner's motion in that we extended the deadline for responding to the Motion for Summary Judgment to October 15, 2021. On October 15, 2021, petitioner filed his Opposition to Motion for Summary Judgment.
Petitioner has not filed a cross-motion for summary judgment, but petitioner's Opposition to Motion for Summary Judgment contests the appropriateness of respondent's determination for his 2011, 2012, and 2014 taxable years (years at issue). Under the circumstances we will recharacterize petitioner's Opposition to Motion for Summary Judgment as a Cross-Motion for Summary Judgment. See Klein v. Commissioner, 149 T.C. 341, 342-43 (2017); Luu v. Commissioner, T.C. Memo. 2022-126, at *10. Because there is insufficient proof of mailing for the notices of deficiency underpinning the assessed tax liabilities that respondent seeks to collect, we deny respondent's Motion for Summary Judgment and grant in part petitioner's Cross-Motion for Summary Judgment. We deny petitioner's Cross-Motion for Summary Judgment in all other respects, including but not limited to petitioner's request for a refund for his 2015 taxable year and his requests for sanctions and costs. We also decide that respondent's determination is not sustained and that the lien filing should be withdrawn.
Background
Petitioner did not timely file returns for his 2011 and 2012 taxable years. On August 11, 2014, respondent prepared substitute returns for petitioner's 2011-12
Entered and Served 01/02/24 taxable years pursuant to section 6020(b). Respondent also prepared separate notices of deficiency for 2011 and 2012, each dated December 8, 2014, that listed petitioner's San Francisco, California, address. Respondent has produced no mailing records proving that either of these notices was ever mailed to petitioner.
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure. Some monetary amounts have been rounded to the nearest dollar.
Although outside the scope of the administrative record, petitioner conceded at trial that the address shown on the 2011 and 2012 notices of deficiency was his address in 2014. None of our holdings depends on this concession.
Petitioner did not timely file a petition with this Court in response to either the 2011 or the 2012 notice of deficiency. On April 20, 2015, respondent assessed the following deficiencies and additions to tax for petitioner's 2011-12 taxable years:
Year
Income Tax Deficiency
§ 6651(a)(1) Addition to Tax
§ 6651(a)(2) Addition to Tax
§ 6654 Addition to Tax
2011
$7,664
$1,634
$1,343
$143
2012
20,790
4,678
2,599
373
On August 24, 2015, respondent processed petitioner's delinquent 2011 income tax return, which reported total tax of $7,140, withholding payments of only $403, and no estimated tax payments or credits. Respondent accepted the return as filed and later abated $524 of the deficiency (the difference between the amount respondent had previously assessed as income tax for 2011 and the amount petitioner reported) and adjusted the amounts of the already-assessed additions to tax under sections 6651(a)(1) and 6654 to reflect the reduced deficiency. On August 28, 2015, respondent processed petitioner's delinquent 2012 income tax return, which reported total tax of $21,692 but no withholding or estimated tax payments or credits. Respondent treated this return as a duplicate return and did not assess the additional tax of $902 reported on the 2012 return or any other amount. On October 5, 2015, respondent processed and accepted as filed petitioner's 2014 income tax return, which reported total tax of $16,884, and withholding payments of $18,190, and claimed a refund of $1,306.
Although outside the scope of the administrative record, petitioner testified at trial that he mailed federal income tax returns for all of the years at issue, together with a check for $2,500 and a payment plan request, to the IRS in the same envelope on or before the due date for his 2014 return (i.e., on or before April 15, 2015, see § 6072(a)). We express no view on this testimony, and none of our holdings depends on it.
On May 10, 2016, respondent mailed to petitioner a Letter 3172, Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320 (NFTL), with respect to the years at issue. Respondent sought to collect petitioner's unpaid tax liabilities for 2011 and 2012, as well as an alleged unpaid balance for 2014 in the amount of $3,806. Respondent now concedes that petitioner has no unpaid tax liability for 2014. Petitioner timely filed a Form 12153, Request for a Collection Due Process or Equivalent Hearing, dated May 26, 2016, which respondent received on May 31, 2016. On the Form 12153, petitioner requested withdrawal of the NFTL in part due to "unlawful denied installment payments" and provided the case number for a lawsuit he had brought against the IRS in another federal court.
Petitioner's request for a section 6320 hearing was assigned to Appeals Account Resolution Specialist Terri K. Erby (AARS Erby). On August 1, 2016, AARS Erby ascertained that petitioner did not have an unpaid income tax liability for 2014 and determined that the filing of the NFTL for 2014 should be reversed. AARS Erby made various unsuccessful attempts to reach petitioner and request information from him, including scheduling an administrative hearing that petitioner did not attend. Petitioner eventually left AARS Erby a voicemail on October 25, 2016. AARS Erby returned the call and left a message that the IRS Office of Appeals (Appeals Office) was sustaining the NFTL. On November 2, 2016, the Appeals Office issued a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330 of the Internal Revenue Code (Notice of Determination) sustaining the NFTL for the years at issue.
On July 1, 2019, the IRS Office of Appeals was renamed the IRS Independent Office of Appeals. See Taxpayer First Act, Pub. L. No. 116-25, § 1001, 133 Stat. 981, 983 (2019). Since both names were in effect at different times relevant to this case, we will refer to them both as the Appeals Office.
Petitioner timely filed his Petition in this Court challenging respondent's determination in the Notice of Determination for the years at issue. Petitioner asserted in part that he had proposed an installment agreement during the administrative hearing that would have resolved his unpaid 2011-12 income tax liabilities. Petitioner also challenged whether AARS Erby had contacted him during the hearing process. Petitioner resided in California when he filed his Petition.
After denying an earlier summary judgment motion by respondent without prejudice to renew, we held trial in this case on October 30, 2019. During the trial, petitioner challenged whether AARS Erby had properly considered an installment agreement he claimed he had proposed during the administrative hearing and whether respondent had properly credited his account for payments that he had made toward his outstanding income tax liabilities. Petitioner also questioned whether he received notices of deficiency for 2011 and 2012. Respondent contended during trial that petitioner was not entitled to a collection alternative because he had not yet filed his 2013 and 2015-17 tax returns.
We ultimately remanded the case to clarify and supplement the administrative record, which was confusing and incomplete as to whether and when petitioner had filed certain federal income tax returns and made certain payments, and to clarify whether and when respondent had issued notices of deficiency. We urged respondent to consider any collection alternative offered by petitioner, and we advised petitioner that he should file any delinquent tax returns. We stated specifically at trial that we saw "almost nothing in this record indicating that anybody in the [Appeals Office] confirmed that the Notice of Deficiency was actually issued and that it was sent to a taxpayer's last known address. What in this record shows that that happened?" (Emphasis added.). Later, in our Order dated March 31, 2020, we stated that the purpose of remanding the case to the Appeals Office was "to update the administrative record in this case so that it properly reflects petitioner's filed tax returns, his payments made, and the notices of deficiency issued to petitioner" (Emphasis added.).
On remand, Appeals Officer Colleen Girard (AO Girard) conducted the supplemental hearing. Throughout the course of the supplemental hearing, AO Girard and petitioner discussed petitioner's filing compliance, the crediting of certain payments petitioner made toward his income tax liabilities for the years at issue, a time-barred refund shown on a copy of petitioner's unfiled 2015 income tax return, and the possibilities of an installment agreement, penalty abatement, and interest abatement. AO Girard requested that a $3,806 credit on petitioner's 2014 account be transferred to offset his 2012 tax liability. Nonetheless, AO Girard and petitioner did not reach an agreement on other issues, and AO Girard considered the possibility of lien withdrawal but rejected it. The Appeals Office issued petitioner a Supplemental Notice of Determination Concerning IRS Collection Actions under Internal Revenue Code Sections 6320 or 6330 (Supplemental Notice of Determination), dated February 26, 2021, for the years at issue. As of March 22, 2021, petitioner's outstanding tax liability for his 2014 taxable year was $0.
On or about May 28, 2021, petitioner made a $30,000 payment toward his 2013 tax liability, which satisfied the 2013 tax liability and left him with a credit of $27,750 that the IRS transferred to offset part of his outstanding 2012 tax liability. See § 6402(a). On or about June 7, 2021, the IRS processed petitioner's 2017 income tax return, which reported an overpayment of $4,048; the IRS, however, adjusted the claimed overpayment downward by $3,400 due to a disallowed earned income tax credit. The IRS applied the resulting $648 overpayment against petitioner's 2012 tax liability. See id. As of July 18, 2021, the IRS's computerized records showed that petitioner had not filed a return for his 2015 taxable year.
Discussion
I. General Principles
A. Background
When the IRS assesses tax and demands payment, section 6321 automatically imposes a tax lien on the taxpayer's property or property rights. The lien is treated as arising from the time of assessment. See § 6322. To perfect this lien, the IRS must file a notice of federal tax lien in the county where the taxpayer's property is situated.
See § 6323(a), (f). Section 6320 requires the IRS to send notice to the taxpayer that it has filed the notice of federal tax lien. See § 6320(a)(1) and (2). This notice must also inform the taxpayer of the taxpayer's right to request a hearing. See § 6320(a)(3)(B). At the hearing, the taxpayer may raise any relevant issue relating to the unpaid tax or the lien, including appropriate spousal defenses; challenges to the appropriateness of collection action; offers of collection alternatives; and challenges to the existence or amount of the underlying tax liability. See §§ 6320(c), 6330(c)(2). The determination by the appeals officer must take into consideration the relevant issues raised by the taxpayer, as well as verification that the requirements of any applicable law or 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 person that any collection action be no more intrusive than necessary. See §§ 6320(c), 6330(c)(3).
B. Jurisdiction and Standard of Review
We have jurisdiction to review the Appeals Office's determination concerning collection actions when the taxpayer petitions for review. See §§ 6320(c), 6330(d)(1). Where the validity of the taxpayer's underlying liability is properly at issue, see § 6330(c)(2)(B), we review the underlying liability de novo, Sego v. Commissioner, 114 T.C. 604, 610 (2000). Underlying liability includes additions to tax. See Katz v. Commissioner, 115 T.C. 329, 339 (2000). We review the IRS's determinations respecting any nonliability issues for abuse of discretion. Goza v. Commissioner, 114 T.C. 176, 182 (2000). Abuse of discretion exists when a determination is arbitrary, capricious, or without sound basis in fact or law. See Murphy v. Commissioner, 125 T.C. 301, 320 (2005), aff'd, 469 F.3d 27 (1st Cir. 2006).
While we historically have held that a taxpayer must timely file a petition in order to invoke our jurisdiction in a lien or levy case, the Supreme Court of the United States has recently held to the contrary. See Boechler, P.C. v. Commissioner, 142 S.Ct. 1493, 1501 (2022) ("Section 6330(d)(1)'s 30-day time limit to file a petition for review of a collection due process determination is an ordinary, nonjurisdictional deadline subject to equitable tolling."); see also Mellon v. Commissioner, T.C. Memo. 2023-108, at *14 n.12. In any case, petitioner timely filed his Petition.
As an initial matter, the Supplemental Notice of Determination is moot with respect to petitioner's 2014 taxable year because there is no unpaid balance remaining for respondent to collect. See Greene-Thapedi v. Commissioner, 126 T.C. 1, 7-8 (2006). To the extent that petitioner is challenging AO Girard's determination that petitioner was not entitled to a credit or refund for his 2015 taxable year because any claim for a credit or refund was time-barred, we lack jurisdiction in a section 6320 case to adjudicate a disputed credit or refund claim that is unrelated to the liability that the IRS proposes to collect. See Weber v. Commissioner, 138 T.C. 348, 368-69 (2012); Schwartz v. Commissioner, T.C. Memo. 2022-125, at *11-12. We therefore lack jurisdiction to determine a credit or refund for petitioner's 2015 taxable year because 2015 is not one of the years at issue. See Weber, 138 T.C. at 360 (analyzing whether a credit is a "claimed overpayment of an unrelated liability that the taxpayer asks us to adjudicate and then to offset against the different liability that is the subject of the IRS's collection efforts" or, in contrast, "a credit that a taxpayer is explicitly permitted by regulation to report on the income tax return for the year at issue").
C. Supplemental Hearing
When we remand a case to the Appeals Office and the Appeals Office issues a supplemental notice of determination, we review the determination as supplemented. See LG Kendrick, LLC v. Commissioner, 146 T.C. 17, 36 (2016), aff'd, 684 Fed.Appx. 744 (10th Cir. 2017); see also Kelby v. Commissioner, 130 T.C. 79, 86 (2008). Accordingly, we review respondent's determination as supplemented in the Supplemental Notice of Determination.
D. Scope of Review and Summary Judgment Standard
Absent a written agreement to the contrary, see § 7482(b)(2), venue for an appeal is the U.S. Court of Appeals for the Ninth Circuit, see § 7482(b)(1)(G)(i). "That court has held that, where de novo review is not applicable, the scope of review in . . . [sections 6320 and 6330] cases is confined to the administrative record." Starcher v. Commissioner, T.C. Memo. 2021-144, at *7 (citing Keller v. Commissioner, 568 F.3d 710, 718 (9th Cir. 2009), aff'g in part T.C. Memo. 2006-166, and aff'g in part, vacating in part decisions in related cases); see also Golsen v. Commissioner, 54 T.C. 742, 756-57 (1970) (holding that "better judicial administration requires us to follow a Court of Appeals decision which is squarely in point where appeal from our decision lies to that Court of Appeals"), aff'd, 445 F.2d 985 (10th Cir. 1971). In other words, the Ninth Circuit has linked the applicable scope of review with the applicable standard of review. As explained below, we do not reach the merits of petitioner's underlying liabilities, and we therefore have no occasion to apply de novo review in this Order and Decision. Neither petitioner nor respondent has supplied any reason to believe that the administrative record is incomplete. Accordingly, "summary judgment serves as a mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Belair v. Commissioner, 157 T.C. 10, 17 (2021) (quoting Van Bemmelen v. Commissioner, 155 T.C. 64, 79 (2020)).
We are not confined to the administrative record when de novo review is applicable, see Dietz v. Commissioner, T.C. Memo. 2023-69, at *8, such as when a taxpayer has made a proper challenge to an underlying liability, see Stevenson v. Commissioner, T.C. Memo. 2023-115, at *5. Petitioner made a challenge to his underlying liabilities in the supplemental hearing, but we need not address that challenge because our decision turns on an issue that we resolve for abuse of discretion (proof of mailing for the 2011-12 notices of deficiency) and would not be affected by our resolution of that challenge. See Freije v. Commissioner, 125 T.C. 14, 35 (2005) ("[S]ection 6330(c)(2)(B) . . . should not be construed to allow respondent to employ it to perfect an assessment made in derogation of section 6213(a)."). Accordingly, we do not apply de novo review in this Order and Decision.
II. Abuse of Discretion
We generally review the administrative record to determine whether the Appeals Office (1) properly verified that the requirements of applicable law or administrative procedure have been met; (2) considered any relevant issues that petitioner raised; and (3) considered whether the NFTL balances the need for the efficient collection of taxes with petitioner's legitimate concern that any collection action be no more intrusive than necessary. See §§ 6320(c), 6330(c)(3); Lunsford v. Commissioner, 117 T.C. 183, 184 (2001). While the Appeals Office and petitioner discussed a number of topics in the supplemental hearing, our decision in this case turns only on the verification issue. Accordingly, we do not discuss any other issue determined in the Supplemental Notice of Determination.
A. Verification
We have authority to review satisfaction of the verification requirement regardless of whether the taxpayer raised the issue at the section 6320 hearing. See Hoyle v. Commissioner, 131 T.C. 197, 200-03 (2008). With one exception, the Appeals Office properly verified that all of the applicable requirements were met.Nonetheless, the Appeals Office's determination that the IRS validly made assessments of tax for 2011 and 2012 is incorrect as a matter of law on the administrative record, and we are therefore unable to sustain the Supplemental Notice of Determination.
The supervisory approval requirement of section 6751(b)(1) does not apply to the additions to tax at issue because they were additions to tax under sections 6651 and 6654. See § 6751(b)(2)(A); Ludlam v. Commissioner, T.C. Memo. 2019-21, at *10 n.4, aff'd, 810 Fed.Appx. 845 (11th Cir. 2020).
"Per section 6212(a) and (b) respondent must send a deficiency notice to the taxpayer's last known address by certified mail or registered mail before it assesses liability for unpaid taxes. Actual receipt of the notice by the taxpayer is not required to establish the validity of the assessment." Warner Enterprises, Inc. v. Commissioner, T.C. Memo. 2023-145, at *6; see Pietanza v. Commissioner, 92 T.C. 729, 736 (1989) ("A valid notice of deficiency has been issued if it is mailed to the taxpayer's last known address by certified or registered mail."), aff'd, 935 F.2d 1282 (3d Cir. 1991); Cataldo v. Commissioner, 60 T.C. 522, 524 (1973), aff'd per curiam, 499 F.2d 550 (2d Cir. 1974). "[I]f a valid notice of deficiency . . . was not sent to . . . [the taxpayer], then an assessment of a deficiency would be invalid." Powers v. Commissioner, T.C. Memo. 2009-229, slip op. at 18 (citing § 6213(a); Freije, 125 T.C. at 35-37); see also Hoyle, 131 T.C. at 205 ("If respondent's assessment of . . . [the taxpayer's] tax liability was not preceded by a notice of deficiency as required by section 6213(a), the assessment is invalid. . . . If respondent did not validly assess . . . [the taxpayer's] tax liability, then no lien would have arisen with respect to that tax liability and collection could not proceed."); Warner Enterprises, Inc., T.C. Memo. 2023-145, at *6. The IRS must prove that it complied with the mailing requirement "by competent and persuasive evidence." Coleman v. Commissioner, 94 T.C. 82, 90 (1990); see Welch v. United States, 678 F.3d 1371, 1378 (Fed. Cir. 2012); Warner Enterprises, Inc., T.C. Memo. 2023-145, at *6.
The administrative record contains insufficient proof of mailing for the 2011- 12 deficiencies. Respondent has not produced, for example, a United States Postal Service (USPS) Form 3877, Firm Mailing Book for Accountable Mail. Any indication in the administrative record that the IRS actually mailed the 2011-12 notices of deficiency to petitioner is limited to (1) what appears to be a USPS tracking number on the front page of each notice of deficiency and (2) AO Girard's statement that an assessment was properly made for each tax and period.
The IRS has also not produced a USPS Form 3800, Certified Mail Receipt. Cf. Keado v. United States, 853 F.2d 1209, 1212-14 (5th Cir. 1988) (discussing circumstances under which a USPS Form 3800 provides proof of mailing even though the IRS's regular mailing procedures are not followed).
Under similar circumstances, we have soundly rejected the argument that these two relatively meager indications of mailing are sufficient to prove that the IRS actually mailed a notice of deficiency to a taxpayer. See Powers, T.C. Memo. 2009-229, slip op. at 18-24; see also Pietanza, 92 T.C. at 739-40 (noting that a USPS Form 3877 provided by the IRS was not certified); Rivas v. Commissioner, T.C. Memo. 2017-56, at *13 (stating that a presumption of mailing does not arise even if a USPS Form 3877 exists but is incomplete or has minor defects), appeal dismissed, Docket No. 17-2732 (2d Cir. Mar. 30, 2018); cf. United States v. Zolla, 724 F.2d 808 (9th Cir. 1984) (finding that a USPS Form 3877 and an IRS certificate of assessments together were sufficient to establish that notice and assessments were properly made); Hoyle, 131 T.C. at 205 n.7 (stating that an appeals officer must "do more than consult the computerized records" when the "taxpayer alleges no notice of deficiency was mailed"); Eichelburg v. Commissioner, T.C. Memo. 2013-269, at *4 (finding sufficient proof of certified mailing of a notice of deficiency where both a USPS Form 3877 and a notice of deficiency bearing a certified mail tracking number were produced). Although it is doubtful whether they would be sufficient standing alone, even the account transcripts for petitioner's 2011-12 taxable years are inconclusive and ambiguous on this point. The Appeals Office did not properly verify that the IRS actually mailed the 2011-12 notices of deficiency to petitioner, and the Appeals Office's determination that the assessments are valid therefore constitutes an abuse of discretion.
It is true that petitioner belatedly submitted income tax returns for his 2011- 12 taxable years and that, pursuant to section 6201(a)(1), respondent may have been able to make assessments for those years on the basis of those returns. Nonetheless, Congress has addressed the situation where the IRS makes an imperfect assessment by providing that the Secretary of the Treasury, at any time within the period prescribed for assessment, may make a supplemental assessment whenever it is ascertained that any assessment is imperfect or incomplete in any material respect. See § 6204(a). For example, the Ninth Circuit has found an imperfect assessment to be perfected when the IRS "timely reassessed . . . [the taxpayer's] tax liability within the three year statutory period[.]" Brookhurst, Inc. v. United States, 931 F.2d 554, 557 (9th Cir. 1991). Respondent never purported to make any supplemental assessment for either 2011 or 2012, instead partially abating the already-assessed 2011 tax and declining to process petitioner's 2012 tax return. This is insufficient to perfect the assessment. See id. (stating that section 6204(a) permits the government "to reassess" an imperfect assessment if "the assessment is completed" within three years from the date the tax return is filed); see also Johnson v. United States, 123 F.3d 700, 702 (2d Cir. 1997) ("The IRS may use its lien and levy powers to collect a tax deficiency only if it first makes a valid assessment, provides notice of the deficiency to the taxpayer and provides notice and demand for payment of the assessed tax. . . . A panel of this court already has determined that the first assessment was invalid. Thus, [the taxpayer] . . . is entitled to a refund unless the second assessment was valid. . . . [The taxpayer] does not dispute that the IRS made the second assessment within the prescribed period."); cf. Freije, 125 T.C. at 34-35 (holding that the Commissioner's failure to show that a portion of an assessment fell within an exception "to the proscription of section 6213(a) on assessments without deficiency procedures is fatal" to that portion of the assessment). Similarly, respondent may have been able to abate the initial assessments for 2011-12 in full and reassess petitioner's tax liabilities upon receiving petitioner's income tax returns for those years, see Service Bolt & Nut Co. v. Commissioner, 724 F.2d 519, 524-25 (6th Cir. 1983), aff'g 78 T.C. 812 (1982), but respondent did not do that either. The only assessments respondent ever made for petitioner's 2011-12 taxable years were pursuant to substitutes for return and related notices of deficiency, and the Appeals Office did not properly verify that those assessments were validly made on the administrative record before us.
We stated at trial on October 30, 2019, that we saw "almost nothing in this record indicating that anybody in the [Appeals Office] confirmed that the Notice of Deficiency was actually issued and that it was sent to a taxpayer's last known address. What in this record shows that that happened?" (Emphasis added.). In our Order dated March 31, 2020, we stated that the purpose of remanding the case to the Appeals Office was "to update the administrative record in this case so that it properly reflects petitioner's filed tax returns, his payments made, and the notices of deficiency issued to petitioner" (emphasis added). The supplemented administrative record now makes it clear that the proof of mailing for the 2011-12 notices of deficiency is inadequate. Respondent's statements in his Motion for Summary Judgment that the 2011-12 notices of deficiency were "mailed to" petitioner's San Francisco address, which cite only the notices themselves and not any proof of mailing for support, are unsupported by the administrative record. We emphasize that the mailing of a notice of deficiency is a critical step in the process leading to the assessment of a tax subject to deficiency procedures and that verifying proof of such mailing is a crucial part of the Appeals Office's role in a section 6320 or 6330 case.
III. Petitioner's Request for Sanctions and Costs
Petitioner produced a Declaration of Gregory C. Beyer containing three sentences concerning the delivery of a duplicate package sent by the IRS and addressed to petitioner at a residence in Denver, Colorado, on May 7, 2021, in addition to petitioner's residence in Tualatin, Oregon. Petitioner alleges that he no longer resided in Denver at that time and, although the contents of the package are unclear to us, expresses concern about the risk of his sensitive information being exposed. We express no view on the merits of this allegation. A declaration concerning the delivery of a duplicate package to another residence during the course of the supplemental hearing does not establish a genuine issue of material fact for purposes of this section 6320 case. Cf. § 7431(a)(1) ("If any officer or employee of the United States knowingly, or by reason of negligence, inspects or discloses any return or return information with respect to a taxpayer in violation of any provision of section 6103, such taxpayer may bring a civil action for damages against the United States in a district court of the United States."). Although we recharacterize petitioner's Opposition to Motion for Summary Judgment as a Cross-Motion for Summary Judgment, we decline to regard it as a motion for purposes of petitioner's request for sanctions and costs because the requirements of Rule 50(a), such as prior notice to the opposing party and stating the grounds for the motion with particularity, have not been met, and respondent would be extremely prejudiced by being unable to respond to petitioner's allegations.
IV. Conclusion
The proof in the administrative record that the IRS actually mailed notices of deficiency to petitioner for his 2011-12 taxable years is inadequate as a matter of law. We are not required to remand this case to the Appeals Office because the Appeals Office already considered whether notices of deficiency were issued and mailed but reached a legally unsupportable conclusion. See Retuta v. Holder, 591 F.3d 1181, 1189 n.4 (9th Cir. 2010) (declining to remand to an agency where the agency already "considered and ruled on the issue"); Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004) ("[T]his case requires no further agency expertise or evaluation, and our decision does not independently create a potentially far-reaching legal precedent."); see also Zhu v. Gonzales, 493 F.3d 588, 602 (5th Cir. 2007) ("[T]he . . . [agency] has now had two opportunities to address the legal and factual issues that are again before this court; we need not give it a third bite at this apple."); Ndom v. Ashcroft, 384 F.3d 743, 756 (9th Cir. 2004) (declining to remand an issue to an agency for further agency consideration because it would be exceptionally unfair to permit it a third chance to justify its position when it twice had the opportunity, but failed, to do so) (citing Baballah v. Ashcroft, 367 F.3d 1067, 1078 n.11 (9th Cir. 2004)). It is therefore
ORDERED that petitioner's Opposition to Motion for Summary Judgment, filed October 15, 2021, is recharacterized as a Cross-Motion for Summary Judgment. It is further
ORDERED that petitioner's Cross-Motion for Summary Judgment, filed October 15, 2021, is granted in that the Appeals Office abused its discretion by sustaining the lien filing in the absence of sufficient proof that the IRS had mailed notices of deficiency for 2011 and 2012 to petitioner. It is further
ORDERED that petitioner's Cross-Motion for Summary Judgment, filed October 15, 2021, is denied in all other respects. It is further ORDERED that respondent's Motion for Summary Judgment, filed July 22, 2021, is denied. It is further
ORDERED AND DECIDED that the collection action as determined in the Supplemental Notice of Determination Concerning IRS Collection Actions under Internal Revenue Code Sections 6320 or 6330, dated February 26, 2021, upon which this case is based, is moot with respect to petitioner's 2014 taxable year. It is further
ORDERED AND DECIDED that the collection action as determined in the Supplemental Notice of Determination Concerning IRS Collection Actions under Internal Revenue Code Sections 6320 or 6330, dated February 26, 2021, upon which this case is based, is not sustained with respect to petitioner's 2011 and 2012 taxable years and the lien filing should be withdrawn. It is further
ORDERED AND DECIDED that we lack jurisdiction to consider determining an overpayment, or ordering a credit or refund, for petitioner's 2015 taxable year.