Scott William Katz v. Commissioner , 115 T.C. No. 26 ( 2000 )


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    115 T.C. No. 26
    UNITED STATES TAX COURT
    SCOTT WILLIAM KATZ, Petitioner v.
    COMMISSIONER OF INTERNAL REVENUE, Respondent
    Docket No. 16718-99L.                 Filed October 13, 2000.
    P received a notice of deficiency for his 1990 tax
    year. After P petitioned this Court to redetermine
    that deficiency determination, the Court entered a
    stipulated decision providing for a tax deficiency,
    additions to tax, and statutory interest. R
    subsequently filed a lien, and P, in turn, requested an
    Appeals hearing from R’s Appeals Office pursuant to
    sec. 6320(b), I.R.C. P refused to appear at the
    Appeals hearing on the grounds that the location of the
    Appeals hearing was inconvenient to P and his
    witnesses. After an Appeals officer discussed the
    collection matter with P via telephone, the Appeals
    officer issued to P a notice of determination under
    sec. 6330, I.R.C. P subsequently petitioned this Court
    to review the Appeals officer’s determination under
    sec. 6330, I.R.C. R now moves for partial summary
    judgment with regard to the tax deficiency, additions
    to tax, and interest that are the subject of R’s
    collection activities.
    - 2 -
    Held: P received an adequate opportunity for an
    Appeals hearing pursuant to sec. 6320(b), I.R.C. In
    any event, the communications between the Appeals
    officer and P constituted an Appeals hearing under sec.
    6320(b), I.R.C.
    Held, further, P’s challenge to the merits of R’s
    assessment of the tax deficiency and additions to tax
    fails to state a claim on which relief can be granted.
    Held, further, because the Court has jurisdiction
    under sec. 6404(i), I.R.C., over interest abatement
    cases, the Court has jurisdiction to review the Appeals
    officer’s determination with regard to the interest
    that is the subject of R’s collection activities.
    However, the Appeals officer did not abuse his
    discretion in making the determination.
    Scott W. Katz, pro se.
    Kenneth A. Hochman and John T. Lortie, for respondent.
    OPINION
    VASQUEZ, Judge:   Petitioner filed a petition in response to
    respondent’s Notice of Determination Concerning Collection
    Action(s) Under Section 6320 and/or 6330 (notice of
    determination).1   In his petition, petitioner alleges that the
    Internal Revenue Service Office of Appeals (Appeals Office)
    failed to hold a meaningful hearing as required by section
    6320(b) (Appeals hearing).    Petitioner further challenges the
    merits of a tax deficiency and additions to tax previously
    1
    Unless otherwise indicated, all section references are to
    the Internal Revenue Code as amended, and all Rule references are
    to the Tax Court Rules of Practice and Procedure.
    - 3 -
    redetermined by the Court in a decision entered for his 1990 tax
    year, and interest assessed thereon.     Respondent has moved for
    partial summary judgment on the grounds that petitioner has been
    afforded the opportunity for an Appeals hearing, that the tax
    deficiency and additions to tax are properly due, and that the
    interest has been properly calculated.     There are no genuine
    issues of material fact to preclude us from deciding this
    matter.2   We therefore decide the legal issues before us.
    Background
    At the time the petition was filed, petitioner resided in
    West Palm Beach, Florida.   For the sole purpose of deciding the
    motion for partial summary judgment, we summarize the relevant
    facts.3
    On September 19, 1996, respondent issued a notice of
    deficiency with regard to petitioner’s 1990 tax year.     On October
    2, 1996, petitioner filed a petition with this Court seeking a
    redetermination of the tax deficiency and additions to tax
    determined by respondent in the notice of deficiency (original
    tax dispute).   On February 6, 1998, petitioner moved the U.S.
    Bankruptcy Court for the Southern District of Florida to reopen
    his 1990 bankruptcy case to settle the dispute with the
    2
    For purposes of respondent’s motion, petitioner does not
    dispute various factual allegations that are part of the record.
    3
    The summarized facts, however, are not findings of fact
    for the instant case. See Rule 1(a); Fed. R. Civ. P. 52(a).
    - 4 -
    Commissioner regarding his “1990 income tax liability.”     On March
    10, 1998, the bankruptcy court denied the request, ruling that
    petitioner’s “1990 tax liabilities were not discharged in * * *
    [the] bankruptcy case.”   In re Katz, No. 90-39248-BKC-RAM (Bankr.
    S.D. Fla., Mar. 10, 1998).   On May 14, 1998, with regard to the
    original tax dispute, we entered a decision stipulated by the
    parties setting out the amounts of the tax deficiency and
    additions to tax and providing for statutory interest.4     See Katz
    v. Commissioner, Docket No. 21359-96 (May 14, 1998).     The amounts
    of the tax deficiency and additions to tax redetermined in the
    decision were much lower than the amounts set forth in the notice
    of deficiency.   Subsequently, respondent assessed the tax
    deficiency, additions to tax, and interest.
    On February 23, 1999, respondent filed a Notice of Federal
    Tax Lien (lien filing) with regard to the amounts assessed for
    the 1990 tax year in the county recorder’s office for Palm Beach
    County, Florida.   On February 27, 1999, respondent transmitted to
    petitioner a “Notice of Federal Tax Lien Filing and Your Right to
    a Hearing under IRC 6320”.   On or about March 31, 1999, pursuant
    to section 6320(b), petitioner requested an Appeals hearing from
    respondent’s Appeals Office.   In his request, petitioner
    contested the entire amount listed in the lien filing.
    4
    The decision provided: “It is further stipulated that
    interest will be assessed as provided by law on the deficiency
    and additions to tax due from the petitioner.”
    - 5 -
    Petitioner contended that “any tax money allegedly owed for 1990”
    was discharged pursuant to his bankruptcy action and that (in any
    event) interest should not have accrued during the bankruptcy
    proceeding.
    On May 24, 1999, an Appeals officer5 assigned to the South
    Florida region mailed petitioner a letter scheduling petitioner’s
    requested Appeals hearing for June 8, 1999, at an Appeals Office
    in Sunrise, Florida.   The Appeals officer stated in the letter:
    “If you are unable to attend, let me know within the next 5 days,
    and I will arrange another time.   Please try to keep this
    appointment, because conferences are not held in your area often,
    and special arrangements must be made.”   The Appeals officer
    explained that “an earlier conference may be possible if held in
    my office or conducted by telephone.”   The Appeals officer
    further explained to petitioner the procedures of the Appeals
    hearing:
    This conference will be informal. You may present
    facts, arguments, and legal authority to support your
    position. If you plan to introduce new evidence or
    information, send it to me at least 10 days before the
    conference. Statements of fact should be presented as
    affidavits or signed under penalties of perjury.
    On that same day, independent of the letter drafted by the
    Appeals officer, petitioner mailed a letter to the Appeals
    officer reasserting his request for an Appeals hearing.     In the
    5
    The Appeals officer was based in Miami, Florida.
    - 6 -
    letter, petitioner requested that the Appeals hearing “take place
    in West Palm Beach, Florida since all of the witnesses live and
    work in West Palm Beach, Florida.”
    On June 7, 1999, after receiving the Appeals officer’s
    letter dated May 24, 1999, petitioner again transmitted a letter
    to the Appeals officer requesting “that any and all hearings be
    held in West Palm Beach, Florida.”      Petitioner further stated
    that “all of my witnesses and people involved * * * [with regard
    to] the 1990 [tax year] are in West Palm Beach, Florida.      In
    short, I will not attend the conference you set up on 6/8/99.
    * * *   Again, please reset the matter for a conference in West
    Palm Beach, Florida.   I cannot appear with my witnesses almost an
    hour away.”
    On June 21, 1999, petitioner and the Appeals officer had a
    telephone conversation in which they discussed petitioner’s 1990
    tax year.   During the telephone conversation, the Appeals officer
    informed petitioner that Appeals hearings were not available in
    West Palm Beach, Florida, but rather were conducted in Sunrise,
    Florida.    On June 23, 1999, the Appeals officer followed up the
    telephone conversation with a letter in which he stated that he
    saw “no basis for recommending abatement of the 1990 income tax
    liability.”   The Appeals officer also informed petitioner that he
    could (1) petition the Tax Court to review the lien filing
    following the issuance of a notice of determination by the
    - 7 -
    Appeals officer or (2) settle with the Internal Revenue Service
    (IRS).6   On September 28, 1999, following inaction by petitioner,
    the Appeals officer issued a notice of determination deciding
    “not to withdraw the Notice of Federal Tax Lien.”7   In the notice
    of determination, the Appeals officer explained that petitioner’s
    “tax was not dischargeable” pursuant to applicable bankruptcy law
    and that petitioner had “signed a stipulation waiving the
    restrictions prohibiting assessment and collection of the
    deficiency and additions to tax (plus statutory interest) for the
    taxable year 1990”.
    Petitioner, thereafter, petitioned this Court to review
    respondent’s determination pursuant to section 6330.   In the
    petition, petitioner contends that (1) he has never received (or
    had the opportunity for) an Appeals hearing, (2) the Tax Court
    decision with regard to the tax deficiency and additions to tax
    should be vacated because of the previous bankruptcy action, and
    (3) respondent is not entitled to interest for the period during
    6
    The Appeals officer suggested to petitioner the following
    alternatives for settlement:
    1.   Full payment of the liability.
    2.   Enter into an installment agreement.
    3.   Submit an offer in compromise, [based on] doubt-as-
    to collectibility.
    7
    There are no indications in the record that after
    speaking with the Appeals officer, petitioner requested an
    Appeals hearing to be held at the Appeals Office in Sunrise,
    Florida.
    - 8 -
    which he was in bankruptcy proceedings.
    Discussion
    Section 6321 provides that, if any person liable to pay any
    tax neglects or refuses to do so after demand, the amount shall
    be a lien in favor of the United States upon all property and
    rights to property, whether real or personal, belonging to such
    person.   Pursuant to section 6323, the Commissioner generally is
    required to file a Notice of Federal Tax Lien with the
    appropriate State office for the lien to be valid against certain
    third parties.
    After the Commissioner conducts the lien filing, section
    6320(a)(1) requires the Commissioner to provide notice to the
    taxpayer of the lien.8   In addition, under section 6320(a)(3)(B)
    and (b), the Commissioner must provide the taxpayer with notice
    of and an opportunity for an administrative review of the lien
    filing; i.e., an Appeals hearing.   Section 6320(b)(1) requires
    that the Appeals Office conduct the Appeals hearing.   Section
    6320(c) incorporates section 6330(c) and certain parts of section
    6330(d), which describe the procedural rules that apply to the
    8
    In the Internal Revenue Service Restructuring and Reform
    Act of 1998, Pub. L. 105-206, sec. 3401, 112 Stat. 685, 746-750,
    Congress enacted secs. 6320 (pertaining to liens) and 6330
    (pertaining to levies) to provide new protections for taxpayers
    with regard to collection matters.
    - 9 -
    Appeals hearing and the judicial review thereof.9
    At the Appeals hearing, the taxpayer may raise certain
    matters set forth in section 6330(c)(2), which provides in
    pertinent part as follows:
    SEC. 6330(c). Matters Considered at Hearing.-–In
    the case of any hearing conducted under this section-–
    *    *      *    *      *   *   *
    (2) Issues at hearing.--
    (A) In general.–-The person may raise
    at the hearing any relevant issue relating to
    the unpaid tax or the proposed levy,
    including–-
    (i) appropriate spousal defenses;
    (ii) challenges to the
    appropriateness of collection
    actions; and
    (iii) offers of collection
    alternatives, which may include the
    posting of a bond, the substitution
    of other assets, an installment
    agreement, or an offer-in-
    compromise.
    (B) Underlying liability.–-The person
    may also raise at the hearing 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.
    Pursuant to section 6330(d)(1), within 30 days of the issuance of
    9
    Sec. 6330(a) and (b) provides taxpayers with notice and
    opportunity for an Appeals hearing before a levy is made.
    - 10 -
    the notice of determination, the taxpayer may appeal that
    determination to this Court if we have jurisdiction over the
    underlying tax liability.   If we do not have jurisdiction over
    the underlying tax liability, then the appeal is to be made to a
    U.S. District Court.   See sec. 6330(d)(1).
    Appeals Hearing
    Petitioner asserts that the Appeals officer did not afford
    petitioner an Appeals hearing as required under section 6320(b).
    Petitioner argues in his objection to respondent’s motion for
    partial summary judgment that his request for an Appeals hearing
    was never honored, that he has never submitted a “Withdrawal of
    Request for Collection Due Process” form to the Appeals officer,
    and that “various telephonic conversations and/or letters to the
    Petitioner [by the Appeals officer] do not meet the requirements
    of Section 6320” for an Appeals hearing.   Petitioner therefore
    argues that respondent’s motion should be denied.    Respondent
    disagrees and states that the Appeals officer afforded petitioner
    an opportunity to have an “in-person hearing” at the Appeals
    Office in Sunrise, Florida, which petitioner declined.
    Section 6320(b) provides that if a taxpayer “requests a
    hearing under subsection (a)(3)(B), such hearing shall be held by
    the Internal Revenue Service Office of Appeals.”    Section 6320
    does not specify at what location the Appeals hearing needs to
    take place or whether it can occur via telephone.    Furthermore,
    - 11 -
    the legislative history to sections 6320 and 6330 does not
    address this issue.    See H. Conf. Rept. 105-599, at 263-267
    (1998).
    Respondent asserts that for petitioner’s geographic
    location, Appeals hearings are generally held at the Appeals
    Office in Sunrise, Florida.       Petitioner does not dispute this
    claim.    From petitioner’s correspondence with the Appeals
    officer, we assume that petitioner’s complaint is that under
    section 6320(b) he is entitled to an Appeals hearing in West Palm
    Beach, Florida, the location of his alleged witnesses and the
    place of his residence.
    Because Congress has not specifically addressed the location
    for an Appeals hearing, we look to other tax contexts for
    guidance.   In the examination context, Congress has stated that
    the time and place of an examination shall be such time and place
    as “may be fixed by the Secretary and as are reasonable under the
    circumstances.”    Sec. 7605(a).     Under section 301.7605-1(d)(2),
    Proced. & Admin. Regs., the location of an office examination is
    based on the taxpayer's residence:
    (d) Place of examination–- * * *.
    *    *     *      *     *   *    *
    (2) Office examinations–-(i) In general. * * *
    An office examination generally will take place at the
    closest Service office within the district encompassing
    the taxpayer’s residence * * *. It generally is not
    reasonable for the Service to require a taxpayer to
    attend an examination at an office within an assigned
    - 12 -
    district other than the closest Service office.
    (ii) Exception. If the office within the
    assigned district closest to an individual taxpayer’s
    residence * * * does not have an examination group or
    the appropriate personnel to conduct the examination,
    it generally is reasonable for the Service to require
    the taxpayer to attend an examination at the closest
    Service office within the assigned district that has an
    examination group or the appropriate personnel.
    (iii) Travel Considerations. In scheduling
    office examinations, the Service in appropriate
    circumstances will take into account the distance a
    taxpayer would have to travel.
    In section 301.7605-1(e)(1), Proced. & Admin. Regs., the
    Secretary further provides:
    The Service will consider, on a case-by-case basis,
    written requests by taxpayers or their representatives
    to change the place that the Service has set for an
    examination. In considering these requests, the
    Service will take into account the following factors–
    (i) The location of the taxpayer’s current
    residence;
    (ii) The location of the taxpayer’s current
    principal place of business;
    (iii) The location at which the taxpayer’s books,
    records, and source documents are maintained;
    (iv) The location at which the Service can
    perform the examination most efficiently;
    (v) The Service resources available at the
    location to which the taxpayer has requested a
    transfer; and
    (vi) Other factors that indicate that conducting
    the examination at a particular location could pose
    - 13 -
    undue inconvenience to the taxpayer.[10]
    The Treasury regulations in the examination context consider
    the distances taxpayers will have to travel to submit information
    to the IRS and attempt to provide taxpayers with venues at IRS
    offices near their homes.     At the same time, the Treasury
    regulations recognize the limited resources of the IRS and, under
    certain circumstances, provide for alternate examination
    locations more favorable to the IRS if the IRS office closest to
    the taxpayer’s home lacks the appropriate personnel to conduct
    the investigation.     We conclude that a similar framework also
    applies in the context of an Appeals hearing under section
    6320(b).11
    From the record, it appears that the Appeals Office closest
    to the residence of petitioner is the Appeals Office in Sunrise,
    Florida.     Petitioner has not alleged that there is an Appeals
    Office in West Palm Beach or one closer to his residence.
    Petitioner alleged in one of his letters to the Appeals officer
    only that he could not “appear with [his] witnesses” when the
    10
    Sec. 301.7605-1(e)(2), Proced. & Admin. Regs., lists the
    circumstances in which the Internal Revenue Service (IRS) will
    normally permit transfers.
    11
    Sec. 6330(b) (which is almost identical to sec. 6320(b))
    allows a taxpayer to have an Appeals hearing with regard to a
    proposed levy. Because Appeals hearings pursuant to secs.
    6320(b) and 6330(b) have the same function and scope, the
    framework we apply to an Appeals hearing under sec. 6320(b) also
    applies to an Appeals hearing under sec. 6330(b).
    - 14 -
    hearing location was “almost an hour away” from West Palm Beach.
    Petitioner did not, nor does he now, explain why commuting an
    hour would constitute an undue burden on petitioner or his
    witnesses.   On the basis of the record, we cannot find support
    for petitioner’s contention.
    We also note that in Davis v. Commissioner, 115 T.C. ___
    (2000), we recently addressed a taxpayer’s claim that an Appeals
    officer failed to afford him an Appeals hearing as envisioned by
    Congress in section 6330.    The taxpayer in that case argued that
    any meaningful hearing required “that he be able to subpoena
    witnesses and documents”.    Id. at ___ (slip op. at 8).    We stated
    that the “nature of the administrative Appeals process does not
    include the taking of testimony under oath or the compulsory
    attendance of witnesses.”    Id. at ___ (slip op. at 11).    We noted
    that hearings “at the Appeals level have historically been
    conducted in an informal setting” and that nothing in section
    6330 or the legislative history indicated that Congress intended
    to alter this format.12     Id. at ___ (slip op. at 10).    Pursuant
    12
    In Davis v. Commissioner, 115 T.C. ___, ___ (2000) (slip
    op. at 10), we looked at Treasury regulations dealing with the
    functions of the Appeals Office. We cited sec. 601.106(c),
    Statement of Procedural Rules, which provides:
    (c) Nature of proceedings before Appeals.
    Proceedings before the Appeals are informal. Testimony
    under oath is not taken, although matters alleged as
    facts may be required to be submitted in the form of
    affidavits, or declared to be true under the penalties
    (continued...)
    - 15 -
    to Davis v. 
    Commissioner, supra
    , applicable Treasury regulations,
    and the historical function of the Appeals Office, petitioner did
    not have the right to examine witnesses under oath during the
    Appeals hearing.13   Davis v. 
    Commissioner, supra
    , undermines
    petitioner’s argument that he was entitled to an Appeals hearing
    in West Palm Beach because traveling to Sunrise, Florida, for his
    Appeals hearing would impose a burden on his witnesses.
    On the basis of the entire record and applicable law, we
    conclude that the Appeals officer has complied with the
    requirements of section 6320(b) by providing petitioner an
    opportunity for an Appeals hearing.
    Because of petitioner’s insistence on an Appeals hearing in
    West Palm Beach, Florida, the Appeals officer attempted to
    accommodate petitioner by offering to discuss his case over the
    telephone.   From the record, we conclude that petitioner and the
    Appeals officer did in fact discuss his case over the telephone
    and that the Appeals officer heard and considered petitioner’s
    arguments.   We thus further conclude that, through the
    communications between petitioner and the Appeals officer in the
    instant case, petitioner received an Appeals hearing as provided
    for in section 6320(b).
    12
    (...continued)
    of perjury. * * *
    13
    Petitioner, however, could have submitted facts in the
    form of affidavits or declarations under penalties of perjury.
    - 16 -
    The Court’s Jurisdiction To Review Respondent’s Collection
    Activities Is Based on Jurisdiction Over the Underlying Tax
    Liability
    The Appeals officer made a determination that the lien
    should not be removed because the tax deficiency, additions to
    tax, and interest were properly due.   By way of a timely filed
    petition, petitioner has invoked the jurisdiction of this Court
    to review the determination with regard to each of those amounts.
    The Court’s jurisdiction to review an Appeals officer’s
    determination that relief (to remove a lien) should be denied is
    set forth in section 6330(d)(1):
    SEC. 6330(d).   Proceeding After Hearing.--
    (1) Judicial review of determination.–-The person
    may, within 30 days of a determination under this
    section, appeal such determination–-
    (A) to the Tax Court (and the Tax Court
    shall have jurisdiction to hear such matter);
    or
    (B) if the Tax Court does not have
    jurisdiction of the underlying tax liability,
    to a district court of the United States.
    If a court determines that the appeal was to an
    incorrect court, a person shall have 30 days after the
    court determination to file such appeal with the
    correct court.
    Therefore, in order to have jurisdiction over matters listed in a
    petition with regard to a notice of determination pursuant to
    section 6330, we must decide whether the “underlying tax
    liability” is of a type over which this Court normally has
    jurisdiction.   See Moore v. Commissioner, 
    114 T.C. 171
    , 175
    (2000).
    - 17 -
    Although the term “underlying tax liability” is defined in
    neither sections 6320 and 6330 nor the legislative history,
    Congress’ intent in ensuring due process to taxpayers when the
    Commissioner seeks to collect taxes by liens or levies suggests
    that the term includes any amounts owed that are the subject of
    the Commissioner’s collection activities.14    See H. Conf. Rept.
    105-599, supra at 263-267.   We, therefore, interpret the term
    “underlying tax liability” in section 6330(d)(1) to include any
    amounts owed by a taxpayer pursuant to the tax laws.     In this
    case, the underlying tax liability includes the tax deficiency,
    additions to tax, and statutory interest.     We, therefore, must
    decide whether we have jurisdiction over the tax deficiency,
    additions to tax, and interest that are the subject of
    respondent’s collection activities, in order to review the
    Appeals officer’s determination pursuant to section 6330 (and
    petitioner’s contentions) with regard to each of those amounts.
    Review of Tax Deficiency and Additions to Tax
    We generally have deficiency jurisdiction to redetermine
    deficiencies in income taxes and related additions to tax.     See
    secs. 6211, 6213(a), 6214(a); see also Goza v. Commissioner, 
    114 T.C. 176
    , 182 (2000); Moore v. 
    Commissioner, supra
    at 175.         We,
    therefore, have jurisdiction to review the Appeals officer’s
    determination in this case insofar as it relates to the assessed
    14
    References to “collection activities” are to the
    Commissioner’s attempts to collect unpaid taxes through the
    filing of a lien or the making of a levy.
    - 18 -
    tax deficiency and additions to tax.
    Pursuant to section 6330(c)(2)(A), a taxpayer may raise at
    the Appeals hearing any relevant issue with regard to the
    Commissioner’s collection activities, including spousal defenses
    to collection, challenges to the appropriateness of the
    Commissioner’s intended collection activities, and possible
    alternative means of collection.   See Sego v. Commissioner, 
    114 T.C. 604
    , 609 (2000); Goza v. 
    Commissioner, supra
    at 180.
    If a taxpayer has been issued a notice of deficiency or had the
    opportunity to litigate the underlying tax liability, however,
    the taxpayer is precluded from challenging the existence or
    amount of the underlying tax liability.   See sec. 6330(c)(2)(B);
    Sego v. 
    Commissioner, supra
    at 609-611; Goza v. 
    Commissioner, supra
    at 180-181, 183-184.   Moreover, the taxpayer is precluded
    from relitigating issues raised and considered in any previous
    Appeals hearing or in any other administrative or judicial
    proceeding in which the taxpayer participated meaningfully.      See
    sec. 6330(c)(4).15
    As to the tax deficiency and additions to tax for 1990,
    petitioner’s liability is established by the stipulated decision
    entered by this Court.16   The bankruptcy court considered and
    15
    Sec. 6330(c)(4), however, does not apply in certain
    limited circumstances. See sec. 6330(d)(2).
    16
    The doctrine of res judicata, which applies to a
    stipulated decision, precludes relitigation of the issues
    involved in that tax litigation. See Cincinnati Transit Inc. v.
    (continued...)
    - 19 -
    rejected his claim that his “income tax liability” for that year
    was discharged in his bankruptcy case.   Petitioner does not seek
    relief as permitted under section 6330(c)(2)(A).   He is thus
    precluded from challenging that liability in this proceeding and
    has, at the same time, failed to state a cognizable claim.    See
    Goza v. 
    Commissioner, supra
    at 183.
    Review of Statutory Interest
    Petitioner makes an additional contention (separate from the
    issues related to the tax deficiency and additions to tax) that
    he is not liable for the statutory interest.   He in effect argues
    that we have jurisdiction to review the Appeals officer’s
    determination with regard to the interest that is the subject of
    respondent’s collection activities.
    In Moore v. 
    Commissioner, supra
    at 175, we interpreted
    section 6330(d)(1)(A) and (B) as not expanding the Court’s
    jurisdiction beyond the types of taxes that the Court may
    normally consider (such as income, estate, and gift taxes).     We
    concluded that because we did not have jurisdiction to
    redetermine Federal trust fund taxes determined by the
    Commissioner under section 6672, we did not have jurisdiction to
    review a determination made pursuant to section 6330 with regard
    to those taxes.   See 
    id. 16 (...continued)
    Commissioner, 
    55 T.C. 879
    , 883-884 (1971); Krueger v.
    Commissioner, 
    48 T.C. 824
    , 829-830 (1967); Hamdan v.
    Commissioner, T.C. Memo. 2000-19.
    - 20 -
    Our jurisdiction to redetermine assessments of interest
    pursuant to section 6601 is limited.   Section 7481(c) provides
    that if within 1 year after a decision becomes final, the
    taxpayer files a petition to redetermine interest, the Tax Court
    has overpayment jurisdiction with regard to the interest.17
    Further, section 6404(i) provides the Tax Court with jurisdiction
    to review the Commissioner’s refusal to abate interest under
    section 6404.
    In his request for an Appeals hearing, petitioner contended
    that interest should not have accrued during his bankruptcy case.
    Because we view petitioner’s request as a request for an
    abatement of interest, we hold that we have jurisdiction to
    review the Appeals officer’s determination with regard to the
    interest that is the subject of respondent’s collection
    activities.
    Under preamendment section 6404(e),18 the Commissioner “may
    abate the assessment of interest on any payment of tax to the
    17
    Sec. 7481(c)(2)(A)(ii), however, requires that the
    taxpayer have “paid the entire amount of the deficiency plus
    interest” for the Tax Court to have overpayment jurisdiction with
    regard to the interest.
    18
    In 1996, sec. 6404(e) was amended under sec. 301 of the
    Taxpayer Bill of Rights 2, Pub. L. 104-168, 110 Stat. 1452, 1457
    (1996), to permit the Secretary to abate interest with respect to
    an “unreasonable” error or delay resulting from “managerial” and
    ministerial acts. This amendment, however, applies to interest
    accruing with respect to deficiencies or payments for tax years
    beginning after July 30, 1996; therefore, the amendment is
    inapplicable to the case at bar. See Woodral v. Commissioner,
    
    112 T.C. 19
    , 25 n.8 (1999).
    - 21 -
    extent that any error or delay in payment is attributable to an
    officer or employee of the IRS being erroneous or dilatory in
    performing a ministerial act.”    See Lee v. Commissioner, 
    113 T.C. 145
    , 148 (1999).   A ministerial act, however, does not include “a
    decision concerning the proper application of federal tax law (or
    other federal or state law)”.    Sec. 301.6404-2(b)(2), Proced. &
    Admin. Regs.
    Petitioner has not alleged a ministerial error within the
    meaning of section 6404(e).   Furthermore, the evidence does not
    establish that respondent committed a ministerial error requiring
    an abatement of interest.
    Conclusion
    For the reasons explained above, petitioner’s challenge to
    his liability for the tax deficiency and additions to tax fails
    to state a cognizable claim for relief.   We hold that none of the
    other grounds upon which petitioner relies, as stated in his
    submissions to the Appeals officer, his petition to this Court,
    and his arguments in response to respondent’s motion, constitutes
    a basis upon which we can find that the Appeals officer’s
    determination was an abuse of discretion.   Because respondent’s
    motion for partial summary judgment covers all the remaining
    issues in the instant case, we treat it as a motion for full
    summary judgment, which we now grant.
    To the extent not herein discussed, we have considered
    petitioner’s other arguments and find them to be without merit.
    - 22 -
    To reflect the foregoing,
    An appropriate order and
    decision will be entered for
    respondent.
    

Document Info

Docket Number: 16718-99L

Citation Numbers: 115 T.C. No. 26

Filed Date: 10/13/2000

Precedential Status: Precedential

Modified Date: 11/14/2018