Angela M. Hammock ( 2022 )

United States Tax Court
Washington, DC 20217
Angela M. Hammock, )
)
Petitioner )
)
v. ) Docket No. 5290-18L.
)
Commissioner of Internal Revenue, )
)
Respondent )
)
)
ORDER
Pursuant to Rule 152(b), Tax Court Rules of Practice and Procedure, it is
ORDERED that the Clerk of the Court shall transmit with this order to
petitioner and respondent a copy of the pages of the transcript of the remote trial in
this case before Judge Ronald L. Buch, where the place of trial was designated as
Tampa, Florida, containing his oral findings of fact and opinion rendered at the
remote trial session at which the case was heard.
In accordance with the oral findings of fact and opinion, decision will be
entered for respondent.
(Signed) Ronald L. Buch
Judge
Served 05/26/22
3
1 Bench Opinion by Judge Ronald L. Buch
2 April 29, 2022
3 Angela M. Hammock v. Commissioner
4 Docket No. 5290-18L
5 THE COURT: The following represents the Court's
6 oral findings of fact and opinion. These oral findings of
7 fact and opinion may not be relied upon as precedent in
8 any other case. This opinion is in conformity with
9 Internal Revenue Code section 7459(b) and Rule 152(a) of
10 the Tax Court Rules of Practice and Procedure. Any
11 section references refer to the Internal Revenue Code or
12 the Treasury regulations in effect during the periods at
13 issue, and Rule references are to the Tax Court Rules of
14 Practice and Procedure.
15 This is a collection case brought pursuant to
16 sections 6320 and 6330 challenging a notice of federal tax
17 lien and a notice of intent to levy issued to Angela
18 Hammock. We are asked to decide whether the Commissioner
19 abused his discretion when issuing a notice of
20 determination sustaining those notices, which relate to
21 penalties under section 6672.
22 Background
23 Through tragic circumstances, Angela Hammock
24 (formerly, Stopanio) inherited Scorpion Performance, Inc.,
25 her family's business. Her parents, Robert, and Teresa
4
1 Stopanio, founded Scorpion, an auto parts manufacturer, in
2 the 1990s. They led the company as chief executive
3 officer and treasurer, respectively, until 2011. That
4 year, they died in an automobile accident that Ms. Hammock
5 witnessed while traveling in a separate vehicle. Ms.
6 Hammock, their only child, served as the personal
7 representative of their estate and heir to their interests
8 in Scorpion.
9 Ms. Hammock also inherited a role with Scorpion.
10 At the time of her parents' passing, Scorpion had about 35
11 employees. Ms. Hammock inherited her mom's role and title
12 as treasurer. A close family friend, Luke Whalen,
13 effectively inherited her father's role in running the
14 day-to-day operations of the business. Even before the
15 Stopanios' passing, Mr. Whalen had been heavily involved
16 in running the business. At some point after her parents'
17 passing, Scorpion also hired Richard Lampen as Chief
18 Financial Officer to assist with financial matters.
19 In 2015, Ms. Hammock received a fateful call
20 from Mr. Lampen informing her of financial troubles with
21 Scorpion. The payroll had grown to roughly 50 employees,
22 although it is not clear that the business had grown
23 correspondingly. Eventually, Ms. Hammock discovered that
24 Mr. Whalen was using Scorpion to hire friends and to pay
25 personal expenses. Company minutes show that Mr. Whalen
5
1 owed Scorpion over $200,000 for personal expenses he had
2 charged to the business.
3 Ms. Hammock's precise role with Scorpion from
4 the time of her parents' death until that fateful call is
5 unclear. She held stock individually and through her
6 parents' estate. She was an officer, held the official
7 title of treasurer, and was an authorized signer on
8 Scorpion's bank account. However, she signed few checks
9 relative to the total checks that were drawn on the
10 account. The directors held management meetings, some of
11 which Ms. Hammock attended. She earned wages from
12 Scorpion.
13 While Scorpion had been paying Mr. Whalen's
14 personal expenses, it had not been remitting its
15 employment taxes. Scorpion first became delinquent in
16 remitting its employment taxes in 2012 and remained
17 delinquent in 2015. At the end of 2015, Scorpion declared
18 bankruptcy.
19 In July 2016, a revenue officer with the
20 Internal Revenue Service sent Ms. Hammock and others,
21 including Mr. Lampen, a pair of letters regarding the
22 Commissioner's attempts to collect Scorpion's unremitted
23 employment taxes. In one letter, the revenue officer
24 informed Ms. Hammock that the Commissioner was in the
25 process of determining who might be personally responsible
6
1 for some portion of the unpaid tax and that information
2 already obtained by the IRS indicated that Ms. Hammock
3 might be responsible. The other letter scheduled an in-
4 person meeting to discuss Ms. Hammock's duties and
5 responsibilities as an officer of Scorpion. These letters
6 began a series of communications and miscommunications
7 that are central to this case.
8 Ms. Hammock sought to have counsel represent her
9 before the IRS. She postponed the in-person meeting, and
10 on August 8, 2016, her counsel faxed the revenue officer a
11 Form 2848, Power of Attorney and Declaration of
12 Representative. Upon receipt of the Form 2848, the
13 revenue officer notified one of Ms. Hammock's lawyers that
14 the form was not processible because it was not completed
15 correctly. The form did not identify the tax form number
16 or tax period for which counsel was representing Ms.
17 Hammock. In response, Ms. Hammock's lawyers submitted a
18 corrected Form 2848 the following day, but that form was
19 not signed by Ms. Hammock. Instead, the new form relied
20 on Ms. Hammock's August 3, 2016, signature from the
21 previous Form 2848. The revenue officer rejected the new
22 Form 2848 for that reason. The revenue officer's
23 contemporaneous notes from August 11, 2016, indicate that
24 Ms. Hammock's lawyers were still trying to obtain Ms.
25 Hammock's signature on the new form from her. The record
7
1 does not show any further activity regarding securing or
2 submitting a corrected or properly signed Form 2848 for
3 Ms. Hammock until after the revenue officer closed the
4 examination.
5 In the meantime, a parallel process was taking
6 place with respect to Mr. Lampen, the CFO of Scorpion. He
7 was represented by the same lawyers as Ms. Hammock. His
8 initial Form 2848 was rejected for similar reasons; but
9 his updated form was accepted.
10 After reviewing the available records, the
11 revenue officer determined that Ms. Hammock was among
12 those responsible for the failure to remit Scorpion's
13 payroll taxes and proposed a trust fund recovery penalty
14 under section 6672 against Ms. Hammock. On February 10,
15 2017, the revenue officer made the initial determination
16 to assess the section 6672 penalty, and on that same day,
17 the group manager approved that determination.
18 A practical consequence of the failure to
19 perfect the Form 2848 occurred on February 15, 2017. On
20 that date, the Commissioner mailed a Letter 1153 to Ms.
21 Hammock. This is the letter that notifies someone that
22 the Commissioner proposes to assess a penalty against them
23 "as a person required to collect, account for, and pay
24 over withheld taxes." In her case activity record, the
25 revenue officer observed that that a corrected Form 2848
8
1 had never been received for Ms. Hammock, whereas one had
2 been received for Mr. Lampen. As a result, the revenue
3 officer sent notices to Ms. Hammock (as to her liability),
4 to Mr. Lampen (as to his liability), and to counsel (only
5 as to Mr. Lampen' liability). No letter was sent to
6 counsel regarding Ms. Hammock's liability.
7 The revenue officer mailed the Letter 1153
8 informing Ms. Hammock of a proposed trust fund recovery
9 penalty, to Ms. Hammock's last-known address by certified
10 mail. That letter was delivered on February 18, 2017,
11 when, according to postal service records, it was left
12 with an individual. The Letter 1153 stated: "If we do not
13 hear from you within 60 days from the date of this letter
14 . . . we will assess the penalty and begin collection
15 action." It also stated: "You may appeal your case to the
16 local Appeals Office" and provided an address to send an
17 appeal.
18 Ms. Hammock claims not to have received the
19 letter in time to file an appeal. She was out of town
20 attending a rodeo when the letter was delivered. Although
21 she states that sometimes the postal service leaves her
22 mail on her fence in a plastic bag, that did not happen
23 here. The Letter 1153 was sent by certified mail, and the
24 postal service tracking information specifically states
25 that it was left with an individual.
9
1 Ms. Hammock did not respond within 60 days. The
2 revenue officer received a protest regarding Mr. Lampen,
3 but not Ms. Hammock. During a phone call with counsel on
4 April 24, 2017, the revenue officer confirmed receipt of
5 the protest for Mr. Lampen and informed counsel that the
6 revenue officer never received an updated Form 2848 for
7 Ms. Hammock. The revenue officer informed counsel that
8 they could not discuss Ms. Hammock's case without a valid
9 Form 2848. See generally, section 6103. On April 25,
10 2017, the revenue officer received a fax of a valid Form
11 2848 for Ms. Hammock. On May 12, 2017, more than 60 days
12 after the Letter 1153 was sent to Ms. Hammock, her counsel
13 faxed to the revenue officer a protest for Ms. Hammock.
14 That fax included a copy of the Letter 1153 that had been
15 sent to Ms. Hammock.
16 The revenue officer rejected the protest as
17 untimely, and the Commissioner set about assessing and
18 collecting the liability. In June 2017, the Commissioner
19 assessed the penalties and mailed Ms. Hammock notice and
20 demand for payment. After the initial assessment and
21 subsequent abatements, the penalties totaled $579,043.
22 After Ms. Hammock failed to pay, the Commissioner mailed
23 her a notice of federal tax lien and notice of intent to
24 levy.
25 Through counsel, Ms. Hammock requested a
10
1 collection hearing. In her request, she stated that she
2 was disputing both notices. She explained that she "was
3 not the responsible person . . . for the tax periods at
4 issue." In an attached memorandum, her attorney alleged
5 that the notices were defective because they "are not
6 supported by any facts," and that if the Commissioner had
7 fully developed the facts, he "would have learned that Ms.
8 Hammock did not engage in any willful conduct to avoid
9 paying the payroll taxes." In her challenge to the
10 collection notices, Ms. Hammock did not indicate that she
11 would like a collection alternative.
12 A settlement officer from the Commissioner's
13 Independent Office of Appeals was assigned to her case and
14 held a hearing. During the collection proceedings, her
15 attorney acknowledged that Ms. Hammock received a Letter
16 1153 at some point but argued that the Commissioner
17 violated her due process rights by failing to send a copy
18 of the letter to her attorneys. After receiving the trust
19 fund recovery penalty file, the settlement officer
20 verified that the Commissioner properly mailed a Form 1153
21 to Ms. Hammock, who filed an untimely protest. Based on
22 this information, she determined Ms. Hammock was precluded
23 from challenging the penalties. She verified that the
24 penalties were assessed more than 60 days after the Letter
25 1153 was mailed, downloaded account transcripts, and
11
1 secured a Form 4183 confirming supervisory penalty
2 approval. In a February 2018 notice of determination, the
3 Commissioner sustained the proposed levy and lien.
4 While residing in Florida, Ms. Hammock filed a
5 timely petition with this Court. In her petition, she
6 alleged that the Commissioner erroneously determined that:
7 (1) "The IRS followed all legal and procedural
8 requirements, including those enumerated in the IRS
9 Manual, and the assessment was properly made for each tax
10 period"; (2) "Ms. Hammock was the responsible person for
11 the payroll liabilities under 6672"; and (3) "Ms. Hammock
12 had an opportunity to challenge [her] status as the
13 responsible person." Although other sections of the
14 petition contained headings that purported to challenge
15 whether procedural requirements were met or whether the
16 assessment was valid, they were, in substance, merely
17 reframed challenges to the underlying liability.
18 While this case has been pending, each of the
19 parties has filed motions for summary judgment, which the
20 Court has denied. We denied the Commissioner's motion
21 because the record did not show whether the settlement
22 officer verified that the applicable law and
23 administrative procedures were met. We denied Ms.
24 Hammock's motion because material facts remained in
25 dispute. The Commissioner filed a motion to remand to
12
1 supplement the administrative record, which we granted.
2 The parties subsequently submitted a
3 supplemental notice of determination dated November 13,
4 2019. In the supplemental notice, the settlement officer
5 described in detail the verification procedures she
6 performed while considering available documents. She
7 confirmed that the revenue officer adequately informed Ms.
8 Hammock's attorneys of errors in the Forms 2848. She also
9 confirmed that the Commissioner never received a
10 processible Form 2848 until after the issuance of the
11 Letter 1153. The notice recites that Ms. Hammock's
12 counsel acknowledged that she received the Letter 1153,
13 but that it was not sent to counsel. Accordingly, the
14 settlement officer verified the Letter 1153 was properly
15 issued.
16 At trial, the parties' positions were fairly
17 straightforward. The Commissioner argues that Ms. Hammock
18 is precluded from challenging the underlying liability,
19 and even if she can challenge it, that she is liable under
20 section 6672. Although framed as a variety of separate
21 arguments, in substance Ms. Hammock argues that she did
22 not have a prior opportunity to challenge the liability
23 and that she is not a responsible person for purposes of
24 the section 6672 penalty. As stated in her pretrial
25 memorandum, her arguments are:
13
1 "(1) Did the IRS properly assess Hammock given
2 it failed to conduct investigation or make factual
3 findings to support the underlying liability
4 determination;
5 (2) did the IRS provide proper notice of the
6 assessment to Hammock and did she have an opportunity to
7 challenge the liability determination;
8 (3) if even Hammock had an opportunity to
9 challenge the liability, did the appeals officer abuse her
10 discretion by failing to consider all the evidence and
11 refusing to hear Hammock's challenge to the underlying
12 liability;
13 (4) did the IRS follow the supervisory approval
14 requirement to verify compliance with Section 6330(c)(1)."
15 Discussion
16 In this collection case, Ms. Hammock is
17 attempting to challenge the underlying liability. The
18 underlying liability in this case includes only penalties
19 under section 6672, sometimes referred to as a "trust fund
20 recovery penalty" or a "responsible person penalty." An
21 employer has the duty to withhold its employees' share of
22 federal taxes from their wages and remit those taxes, plus
23 the employer's share, over to the federal government.
24 Kazmi v. Commissioner, T.C. Memo 2022-13, at *6. The
25 amounts withheld are known as "trust fund taxes" because
14
1 an employer holds them in trust for the government. Id.2 Because the government has no recourse against employees
3 if an employer fails to remit the taxes, section 6672(a)
4 provides a tool to collect the liability from those who
5 may have been responsible to withhold and pay them over.
6 Id.7 Section 6672(a) allows the Commissioner to
8 impose a trust fund recovery penalty on certain people who
9 willfully fail to withhold, account for, and pay over
10 trust fund taxes. Id. Under section 6671(b), the people
11 who might be liable include officers or employees of a
12 corporation who are under a duty to collect, account for,
13 and pay over the taxes. Those people are referred to as
14 responsible persons, and who is responsible is defined
15 broadly. Id., at *7. Whether someone is a responsible
16 person is "a matter of status, duty and authority, not
17 knowledge." Id. (quoting Mazo v. United States, 591 F.2d
18 1151, 1156 (5th Cir. 1979).
19 The trust fund recovery penalty is an
20 "assessable penalty," meaning it is not subject to
21 deficiency procedures. Id., at *6-7. However, section
22 6672(b)(1) requires the Commissioner to provide the
23 taxpayer with notice of the penalty before assessment.
24 Letter 1153 provides a taxpayer with notice and provides
25 the opportunity for an administrative appeal. Mason v.
15
1 Commissioner, 132 T.C. 301, 317 (2009).
2 Standard of Review
3 In a collection case, where the underlying
4 liability is properly at issue, we review the
5 Commissioner's determination de novo. Where the
6 underlying liability is not properly at issue, we review
7 the Commissioner's determination for an abuse of
8 discretion. Sego v. Commissioner, 114 T.C. 604, 610
9 (2000). Whether the underlying liability may be raised in
10 a collection proceeding turns on whether the taxpayer
11 received a notice of deficiency or otherwise had a prior
12 opportunity to dispute the liability. See section
13 6330(c)(2)(B). Trust fund recovery penalties are not
14 subject to deficiency procedures, so the question here is
15 whether Ms. Hammock had a prior opportunity to dispute the
16 liability.
17 Prior Opportunity
18 In a trust fund recovery penalty case, the
19 Letter 1153 provides a prior opportunity to dispute the
20 liability. A prior opportunity includes "a prior
21 opportunity for a conference with Appeals that was offered
22 either before or after . . . assessment." Treas. Reg. §
23 301.6330-1(e)(3), Q&A-E2. The Letter 1153 provides
24 precisely such an opportunity.
25 If someone doesn't receive the relevant letter
16
1 or notice, however, they won't know to request an appeal.
2 Thus, the taxpayer must receive the Letter 1153 or
3 deliberately refuse it for the letter to have provided a
4 prior opportunity. Mason, 132 T.C. at 317-318.
5 For the letter to be received, it must first
6 have been properly mailed. See section 6672(b)(1). The
7 Commissioner must prove proper mailing of the Letter 1153
8 to the taxpayer's last-known address. See Mason, 132 T.C.
9 at 318, 322. The same evidence that establishes that the
10 Commissioner mailed a notice of deficiency is sufficient
11 for purposes of the Letter 1153. Id.; see sections 6212,
12 6672(b). The Commissioner has established that a Letter
13 1153 was mailed by certified mail to Ms. Hammock's last
14 known address as required by section 6672(b)(1). The
15 Commissioner has also established delivery to an
16 individual at that address. The parties do not dispute
17 mailing and delivery. However, they dispute actual
18 receipt.
19 We determine whether a taxpayer received a
20 letter or notice based on the preponderance of the
21 evidence. BM Construction v. Commissioner, T.C. Memo.
22 2021-13, at *12-13. On the issue of receipt, the
23 Commissioner may be entitled to a presumption of
24 administrative regularity. Once the Commissioner proves
25 proper mailing of a Letter 1153, it is presumptively
17
1 delivered to and received by the person to whom it was
2 addressed. Id. To rebut the presumption of receipt, the
3 taxpayer must present strong evidence of non-receipt.
4 Generally, a taxpayer's testimony of non-receipt, standing
5 alone, is insufficient. Klingenberg v. Commissioner, T.C.
6 Memo. 2012-292, at *12, aff'd, 670 F. App'x 510 (9th Cir..
7 2016); Kamps, T.C. Memo. 2011-287, 102 T.C.M. (CCH) 580,
8 582; BM Construction, T.C. Memo. 2021-13, at *16-17.
9 Because the Commissioner established proper mailing and
10 delivery, we must determine whether Ms. Hammock rebutted
11 the presumption of receipt.
12 Ms. Hammock did not rebut the presumption of
13 receipt. The facts clearly establish proper mailing and
14 delivery to an individual at her address. The only
15 contrary evidence is Ms. Hammock's statement that she does
16 not recall receiving the Letter 1153. Yet a copy of that
17 notice was eventually attached to her untimely protest,
18 and the record is silent as to how or when that copy of
19 the notice came into her or her counsel's possession.
20 Moreover, during the supplemental hearing, Ms. Hammock's
21 counsel acknowledged that she received the notice.
22 Contrast the evidence here with that in Lepore
23 v. Commissioner, T.C. Memo. 2013-135. In that case, Mr.
24 Lepore's 23–year–old son received and signed for a Letter
25 1153 addressed to Mr. Lepore. Id., at *3. Mr. Lepore
18
1 "testified that he never saw the Letter 1153 or knew that
2 it had arrived at his home." Id., at *10. We accepted his
3 testimony for a few reasons: (1) Mr. Lepore credibly
4 testified that he always responded to correspondence from
5 the Commissioner (a point not disputed by the IRS) and
6 that he would have responded had he known; (2) his son
7 testified that he did not give the Letter 1153 to his
8 father personally and instead threw it somewhere in the
9 basement; (3) the basement was a multipurpose office space
10 containing Mr. Lepore's desk, the other son's desk, and at
11 least three defunct businesses' files, such that a letter
12 thrown there could easily get lost; (4) Mr. Lepore
13 received a high volume of mail; and (5) the son who
14 received the Letter 1153 did not live in the house when he
15 received it and did not speak to his father frequently.
16 Id., at *10-11.
17 A more analogous situation can be found in Orian
18 v. Commissioner, T.C. Memo. 2010-234, 100 T.C.M. (CCH)
19 356. In that case, the Commissioner established that "a
20 proposed assessment was sent by certified mail to Mr.
21 Orian's last known address; that it was not returned; and
22 that, according to the U.S. Postal Service's Web site, it
23 was delivered." Id., at 359. The taxpayer testified "that
24 he had no memory of receiving the letter and was
25 frequently out of town." Id. Nonetheless, we found that
19
1 taxpayer failed to meet "the burden of proof requirements
2 to overcome the presumption that he received the [Letter
3 1153]." Id.
4 Ms. Hammock did not establish that she did not
5 receive the Letter 1153. Because we conclude that Ms.
6 Hammock received the notice, she may not challenge the
7 underlying liability.
8 Abuse of Discretion
9 Because Ms. Hammock's underlying liability is
10 not at issue, our review of the notice of determination is
11 for abuse of discretion. See Sego, 114 T.C. at 610. An
12 abuse of discretion occurs if Appeals exercises its
13 discretion "arbitrarily, capriciously, or without sound
14 basis in fact or law." Woodral v. Commissioner, 112 T.C.
15 19, 23 (1999). To answer the question of whether the
16 settlement officer abused her discretion, we consider
17 whether she: (1) properly verified that the Commissioner
18 met all requirements of applicable law and administrative
19 procedure for collecting the trust fund recovery
20 penalties, (2) considered any relevant issues petitioner
21 raised, and (3) considered whether the proposed collection
22 action is no more intrusive than necessary. See section
23 6330(c).
24 The main issues raised by Ms. Hammock involve
25 the verification requirement of section 6330(c)(1). In
20
1 collection cases for trust fund recovery penalties, the
2 settlement officer must verify that the Commissioner
3 properly mailed a Letter 1153 and that the section 6672
4 penalty was properly approved under the written
5 supervisory approval requirement of section 6751. See Lee
6 v. Commissioner, 144 T.C. 40, 49 (2015); Chadwick v.
7 Commissioner, 154 T.C. 84, 94-95 (2020). Section 6330
8 does not require the settlement officer to rely on a
9 particular document, and reliance on standard
10 administrative records is generally acceptable. Craig v.
11 Commissioner, 119 T.C. 252, 262 (2002); Blackburn v.
12 Commissioner, 150 T.C. 218, 222 (2018); Nestor v.
13 Commissioner, 118 T.C. 162, 166 (2002). However, when a
14 taxpayer specifically alleges that she never received a
15 Letter 1153, an Appeals officer cannot rely solely on
16 computerized transcripts to verify mailing. See Hoyle v.
17 Commissioner, 131 T.C. 197, 205 n.7 (2008), supplemented
18 by 136 T.C. 463 (2011). Instead, the Appeals officer must
19 examine the underlying documents. Id.20 The record indicates that the settlement officer
21 complied with procedural requirements and gave due
22 consideration to Ms. Hammock's allegations. The settlement
23 officer verified that the Commissioner had determined that
24 Ms. Hammock was a responsible person and that a supervisor
25 approved in writing the initial determination of the
21
1 penalty. The settlement officer also verified that the
2 Letter 1153 was sent by certified mail before the
3 Commissioner assessed the trust fund recovery penalty.
4 Ms. Hammock alleged at trial that she did not recall
5 receiving the Letter 1153. The administrative record
6 reflects that the settlement officer reviewed the
7 documents in the case file, including the Letter 1153, and
8 determined that the Letter 1153 had been sent to Ms.
9 Hammock's last known address by certified mail. The
10 record contains a photocopy of the Letter 1153. The
11 photocopy has the U.S. Postal Service Form 3800, Certified
12 Mail Receipt, attached, indicating that it was sent by
13 certified mail. The administrative record also includes
14 proof of delivery. On remand, the settlement officer
15 verified that all requirements of applicable law and
16 administrative procedure were met.
17 Failure to Notify Counsel
18 Ms. Hammock raises as a separate issue the
19 Commissioner's failure to send a copy of the Letter 1153
20 to her counsel. It is unclear in exactly what context she
21 raises this issue. Is she raising it as a challenge to
22 the underlying liability itself? Or is she raising it as
23 a challenge to whether the settlement officer in the
24 collection proceeding confirmed that all proper
25 administrative steps were taken? Either way, her argument
22
1 fails.
2 The Commissioner did not mail the notice to Ms.
3 Hammock's attorneys because the IRS did not have a valid
4 Form 2848 on file authorizing anyone to represent her.
5 Her counsel did not submit a valid Form 2848 until after
6 the Letter 1153 was issued. But even if the Commissioner
7 had a valid Form 2848 on file, the failure would not
8 invalidate the notice or deprive her of the right to
9 timely appeal. We have repeatedly held in analogous
10 contexts that the failure to send a copy of a notice to a
11 taxpayer's counsel does not invalidate the notice or serve
12 to extend the period of time within which the taxpayer
13 must act. See, e.g., Allen v. Commissioner, 29 T.C. 113,
14 117 (1957); Houghton v. Commissioner, 48 T.C. 656, 661-62
15 (1967); McDonald v. Commissioner, 76 T.C. 750, 752-53
16 (1981).
17 If Ms. Hammock raises this issue as a basis to
18 claim that the settlement officer did not verify that all
19 administrative steps were taken, that argument must fail.
20 In her supplemental notice of determination, the
21 settlement officer verified that there was no processable
22 Form 2848 on file at the time the Commissioner issued
23 Letter 1153.
24 Ms. Hammock's remaining arguments are merely
25 reframed challenges to the underlying liability. For
23
1 example, in her pretrial memorandum, Ms. Hammock questions
2 "did the appeals officer abuse her discretion by failing
3 to consider all the evidence and refusing to hear
4 Hammock's challenge to the underlying liability" or
5 whether "the IRS properly assess[ed] Hammock given it
6 failed to conduct investigation or make factual findings
7 to support the underlying liability determination." These
8 go to the merits of the underlying liability and not the
9 question of whether all administrative steps were taken.
10 We have previously held that "[t]o impose the requirement
11 of a substantive review on the settlement officer would
12 allow the taxpayer to avoid [section 6330's] limitations
13 of pursuing the underlying liability . . . and apply a
14 level of detail in the verification process that has never
15 been previously required." Blackburn, 150 T.C. at 222.
16 The law simply does not require the settlement officer in
17 the collection proceeding to determine whether Ms. Hammock
18 was a responsible person as a condition precedent to
19 verifying procedural compliance.
20 Collection Alternatives
21 Ms. Hammock did not offer any collection
22 alternatives and does not argue that the settlement
23 officer failed to consider any collection alternatives.
24 Conclusion
25 The Commissioner determined that Ms. Hammock was
24
1 a responsible person as to the trust fund liabilities of
2 Scorpion. She did not timely challenge the Commissioner's
3 determination and is precluded from raising the underlying
4 liabilities in this proceeding. The Commissioner verified
5 that all proper administrative steps were taken. The
6 Commissioner did not consider collection alternatives
7 because none were offered. Accordingly, we will sustain
8 the Commissioner's notice of determination. To reflect
9 the foregoing, an appropriate decision will be entered.
10 (Whereupon, at 10:29 a.m., the above-entitled
11 matter was concluded.)
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