Jack E. Robinson v. Commissioner of IRS , 572 F. App'x 846 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-13040
Non-Argument Calendar
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Agency No. 25740-11L
JACK E. ROBINSON,
Petitioner-Appellant,
versus
COMMISSIONER OF IRS,
Respondent-Appellee.
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Petition for Review of a Decision of the
U.S. Tax Court
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(July 22, 2014)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
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Jack E. Robinson appeals the tax court’s grant of summary judgment in
favor of the Commissioner of the Internal Revenue Service (IRS). Robinson
argues that the IRS failed to provide him either a telephonic or in-person collection
due-process (CDP) hearing and that we must remand his case to allow the IRS to
conduct such a hearing. Robinson further argues that, because the tax court failed
to apply the correct standard of review or to state the standard of review it applied,
we must remand. Upon review, 1 we reject Robinson’s arguments and affirm.
I. BACKGROUND
This case arose when the IRS sent Robinson a notice of its intent to levy his
assets in order to satisfy his unpaid income tax liability. In response, Robinson did
not contest his tax liability, but he did submit a request for a CDP hearing
indicating that he was interested in discussing a collection alternative to the IRS’s
proposed levy. The IRS responded by requesting Robinson provide certain
information necessary for the IRS to consider a collection alternative (e.g., bank
statements, proof of necessary living expenses, etc.) and by scheduling a CDP
hearing for September 27, 2011. Robinson subsequently telephoned the IRS to
request a later date and an in-person CDP hearing. The IRS agreed to postpone the
CDP hearing until October 12, 2011, but informed Robinson that it could only
schedule an in-person CDP hearing once he provided the information that had
1
“We review the Tax Court’s factual findings for clear error and its legal conclusions de
novo.” Creel v. Comm’r of Internal Revenue, 419 F.3d 1135, 1139 (11th Cir. 2005).
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previously been requested. The IRS also reminded Robinson that it would not
approve a collection alternative unless he submitted the requested information in
advance of the CDP hearing.
Robinson never submitted the information the IRS had requested, and on the
date of the scheduled telephonic CDP hearing, Robinson did not call in as directed.
As a result, the IRS dismissed his petition for a collection alternative and sustained
the levy action as initially proposed. Robinson appealed this decision to the tax
court, and the tax court ultimately granted the IRS Commissioner’s motion for
summary judgment.
II. DISCUSSION
A. The IRS’s Failure to Provide a Hearing
While the IRS may not levy the property of a taxpayer without first
providing notice of the right to a hearing, 26 U.S.C. § 6330(a)(1), these hearings
are not bound by the formal hearing requirements of the Administrative Procedure
Act and can take place in-person, over the phone, or in writing, 26 C.F.R.
§ 301.6330-1(d)(2). Ordinarily, the IRS will grant an in-person hearing pursuant to
a non-frivolous request, but when a taxpayer requests a hearing for the purpose of
discussing collection alternatives, the IRS generally does not grant an in-person
hearing until the taxpayer, having had an opportunity to do so, provides certain
financial information demonstrating his eligibility for a collection alternative. Id.
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In light of these policies, Robinson’s argument concerning the IRS’s failure
to provide a hearing is frivolous. The IRS provided Robinson with a telephonic
CDP hearing pursuant to applicable regulations, but Robinson failed to call in so
that he could participate. Robinson can show no entitlement to an in-person CDP
hearing, particularly given his failure to comply with the IRS’s request for
information, so the telephonic hearing the IRS attempted to hold was satisfactory.
See Murphy v. Comm’r of Internal Revenue, 469 F.3d 27, 30 (1st Cir. 2006)
(explaining that “no face-to-face meetings are necessary” in the CDP hearing
process); Kindred v. Comm’r of Internal Revenue, 454 F.3d 688, 691 n.4 (7th Cir.
2006) (“[CDP] hearings are informal affairs. Indeed, the regulations provide that
no transcript need be created and that the hearing itself may be conducted via
telephone or the mail.”).
B. The Tax Court’s Failure to State Its Standard of Review
Robinson’s second argument is also frivolous. Robinson has cited no
authority establishing a tax court’s obligation to explicitly state the standard of
review it applies, and nothing in the tax court’s decision indicates that applied an
incorrect standard or that it would have reached a different result applying de novo
review. Moreover, Robinson invited the tax court to apply an abuse-of-discretion
standard by stating in his response to the Commissioner’s motion for summary
judgment that his case should be reviewed for “(arguably) abuse of discretion.”
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Even assuming the tax court erroneously applied an abuse-of-discretion standard,
we will not fault the tax court for an error Robinson invited. See Fed. Trade
Comm’n v. AbbVie Prods. LLC, 713 F.3d 54, 66 (11th Cir. 2013).
III. CONCLUSION
In light of the foregoing, we affirm the tax court’s grant of summary
judgment to the IRS Commissioner.
AFFIRMED.
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