Alberto Garcia, Jr.

United States Tax Court

REVIEWED

164 T.C. No. 8

ALBERTO GARCIA, JR.,

Petitioner

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent

—————

Docket No. 27496-22P. Filed May 19, 2025.

—————

P failed to pay tax liabilities totaling more than

$100,000 that R assessed between 2007 and 2010. R filed

suit in federal district court to reduce those liabilities to

judgment in 2014; the district court entered a default

judgment against P. In 2022, R certified to the Secretary

of State that P has a “seriously delinquent tax debt” within

the meaning of I.R.C. § 7345(b). P filed a Petition with this

Court under I.R.C. § 7345(e)(1) to challenge the

certification.

R filed a Motion for Summary Judgment

maintaining that the certification was proper. R’s Motion

argues, in relevant part, that P’s liabilities were “legally

enforceable” within the meaning of I.R.C. § 7345(b) because

the 2014 default judgment extended the limitations periods

for collection after assessment with respect to those

liabilities until at least 2034. P filed a Response, alleging

that he was never served in the district court action, that

the debt is no longer enforceable, and thus that R’s

certification was erroneous.

Held: Our determination of whether R’s certification

under I.R.C. § 7345(a) is erroneous is made not simply on

the administrative record but on a new record made at the

Served 05/19/25

2

Tax Court, which may include, where appropriate (as

here), evidence introduced at trial.

Held, further, a tax liability is not “legally

enforceable” within the meaning of I.R.C. § 7345(b) if the

limitations period for collecting it after assessment has

expired.

Held, further, whether the relevant limitations

periods for collection remained open at the time of the

certification here turns on whether P was served in the

district court action, which is a disputed issue of fact.

Held, further, because a material issue of fact exists,

R is not entitled to summary judgment.

TORO, J., wrote the opinion of the Court, which

KERRIGAN, C.J., and BUCH, NEGA, PUGH, ASHFORD,

URDA, COPELAND, JONES, GREAVES, MARSHALL,

WEILER, WAY, LANDY, ARBEIT, GUIDER, JENKINS,

and FUNG, JJ., joined.

—————

Steven L. Powell, for petitioner.

Susan K. Bollman, John S. Hitt, and Cierra C. Harris, for respondent.

OPINION

TORO, Judge: This passport case involving old tax liabilities

requires the Court to decide an issue of first impression concerning the

scope of our review in cases arising under section 7345(e). 1 Here is why.

On October 17, 2022, the Commissioner of Internal Revenue

certified to the Secretary of State that petitioner, Alberto Garcia, Jr.,

1 Unless otherwise indicated, statutory references are to the Internal Revenue

Code, Title 26 U.S.C. (I.R.C. or Code), in effect at all relevant times, regulation

references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all

relevant times, and Rule references are to the Tax Court Rules of Practice and

Procedure.

3

owes a “seriously delinquent tax debt” related to tax years 2005, 2006,

2007, and 2008. I.R.C. § 7345(a). 2

For a federal tax liability to constitute a “seriously delinquent tax

debt,” that liability must be “legally enforceable” as of the time of the

Commissioner’s certification. I.R.C. § 7345(b)(1). A tax liability is not

legally enforceable if the period of limitations for collecting it has

expired. See I.R.C. § 6502(a).

Ordinarily, a tax liability must be collected within ten years of

assessment. Id. The liabilities at issue here were assessed more than

ten years before October 2022. Mr. Garcia therefore contends they are

no longer legally enforceable, making the certification erroneous.

The Commissioner disagrees. He maintains that an exception to

the ten-year rule applies because Mr. Garcia’s tax liabilities were

reduced to judgment in a suit filed in the U.S. District Court for the

Southern District of Texas (district court suit). United States v. Garcia,

No. 14-209 (S.D. Tex. Aug. 11, 2014). Relying on 28 U.S.C. § 3201(c)(1),

the Commissioner asserts the government has at least another 20 years

from the date of the judgment to collect them. See I.R.C. § 6502(a) (flush

language). The Commissioner therefore has moved for summary

judgment that the certification was not erroneous.

Mr. Garcia resists the Commissioner’s Motion. He maintains that

he was never served in the district court suit and that the judgment

entered in that suit is void.

To resolve the Motion, we must decide a question that we have

until now found unnecessary to answer in passport cases: What is the

scope of our review or, put differently, on what evidence do we determine

whether the Commissioner’s certification that a seriously delinquent tax

2 As we have explained before,

[s]ection 7345 outlines a two-step procedure whereby the

Commissioner sends certification to the Secretary of the Treasury, who

then transmits the certification to the Secretary of State. In practice,

the IRS follows a one-step procedure whereby the Commissioner, as

the Secretary’s delegate, transmits the certification directly to the

State Department. See I.R.C. § 7701(a)(11); Internal Revenue Manual

5.1.12.27.1, .6, .8 (Dec. 20, 2017).

Adams v. Commissioner, 160 T.C. 1, 6 n.4 (2023), aff’d, 122 F.4th 429 (D.C. Cir. 2024).

4

debt exists is correct? 3 As we will explain, the text of the statute read

in view of our precedents directs that the scope of review is de novo.

That is, in appropriate circumstances like the ones here, our review is

not limited to the administrative record but must include evidence

introduced at a trial.

And because Mr. Garcia raises a genuine issue of material fact as

to whether he was served in the district court suit, we cannot conclude

at this stage of the proceedings that the liabilities at issue are legally

enforceable. We therefore will deny the Commissioner’s Motion.

Background

The following facts are derived from the parties’ pleadings,

Motion papers, and a hearing on the Motion. They are stated solely for

the purpose of ruling on the Motion before us and not as findings of fact

in this case. 4 See Rowen, 156 T.C. at 103.

On October 17, 2022, the Commissioner certified that Mr. Garcia

owed a “seriously delinquent tax debt” pursuant to section 7345(a). The

Commissioner based his certification on $129,959.05 of unpaid liabilities

relating to Mr. Garcia’s income tax and taxes Mr. Garcia owed as an

employer. The Commissioner sent Notice CP508C, Notice of

Certification of Your Seriously Delinquent Federal Tax Debt to the State

Department (Notice), to Mr. Garcia’s last known address at the same

time.

The liabilities underpinning the Commissioner’s certification

with respect to Mr. Garcia are old. With one exception immaterial to

our analysis and not counting interest, they were assessed between

3 See, e.g., Rowen v. Commissioner, 156 T.C. 101, 106 (2021) (reviewed)

(“Although a court reaching a decision on the merits ordinarily must consider both the

scope of review (that is, what evidence the court will consider) and the standard of

review (that is, how the court will evaluate the evidence it considers), see Kasper v.

Commissioner, 150 T.C. 8, 14 (2018), we need not do so here.”); see also, e.g., Meduty v.

Commissioner, 160 T.C. 526, 529 (2023) (citing Rowen, 156 T.C. at 106) (same); Adams,

160 T.C. at 5–6 (citing Rowen, 156 T.C. at 106) (same); Pfirrman v. Commissioner, T.C.

Memo. 2025-22, at *3 (citing Rowen, 156 T.C. at 106) (same).

4 But see the discussion in note 10 below regarding the application of

Rule 121(h).

5

March 26, 2007, and August 23, 2010. 5 The Commissioner filed, for each

liability, a Notice of Federal Tax Lien pursuant to section 6323 between

March 21, 2008, and February 11, 2011. He sent Notices of those filings

to Mr. Garcia’s last known address, as required by section 6320(a),

between March 27, 2008, and February 15, 2011. Mr. Garcia requested

a Collection Due Process (CDP) hearing in response to only one of those

Notices; that hearing concluded on April 11, 2009. It is uncontested that

the time for seeking hearings on the other Notices had expired before

October 2022.

As required by section 6330(a), between March 17, 2008, and

October 25, 2010, the Commissioner sent to Mr. Garcia Notices of Intent

to Levy and Right to a CDP Hearing. Mr. Garcia did not request a CDP

levy hearing in response to any of the Notices mailed to him.

On January 30, 2014, the Commissioner initiated the district

court suit to reduce Mr. Garcia’s liabilities to judgment. Mr. Garcia did

not appear in the district court suit; nor did anyone appear on his behalf.

On August 11, 2014, the district court entered a default judgment

against Mr. Garcia.

As already noted, the Notice was issued on October 17, 2022.

Mr. Garcia lived in Texas when he timely filed his Petition with our

Court on December 14, 2022. 6 On October 18, 2023, the Commissioner

filed a Motion for Summary Judgment.

We set the Motion for a hearing at our March 18, 2024, session in

Houston, Texas. At that hearing, pro bono lawyers participating in the

Court’s Calendar Call Program made a limited appearance on

Mr. Garcia’s behalf. Mr. Garcia’s lawyers advanced several arguments,

one of which was that the debt might be unenforceable. This was so, the

argument went, because the periods of limitations for collection were no

5 The one liability not assessed on or before August 23, 2010, was assessed on

June 29, 2018. That liability amounted to $44. With respect to that liability, the

Commissioner filed a Notice of Lien on June 29, 2018, and notified Mr. Garcia of that

filing on July 3, 2018. Mr. Garcia did not request a CDP hearing in response to the

CDP lien notice. And no Notice of Intent to Levy was issued with respect to the

liability. Because this liability is too small to make a difference to our analysis, we do

not discuss it further.

6 Absent stipulation to the contrary, see I.R.C. § 7482(b)(2), appeal of this case

would lie to the U.S. Court of Appeals for the District of Columbia Circuit, see I.R.C.

§ 7482(b)(1) (flush language); Adams v. Commissioner, 122 F.4th at 433–34.

6

longer open as Mr. Garcia had not been served in connection with the

district court suit. Mr. Garcia himself contested being served.

At the conclusion of the hearing, the parties sought additional

time to explore resolving the case, and the Commissioner sought

additional time to brief the enforceability issue. We agreed to provide

the parties additional time and denied the October 2023 Motion without

prejudice to the Commissioner’s renewing it.

Following the hearing, Mr. Garcia obtained representation, but

unfortunately the parties were unable to reach a resolution. The

Commissioner filed a new Motion for Summary Judgment on August 28,

2024, which was then supplemented on September 30, 2024. A

Response was filed on September 27, 2024.

The Court held a telephone conference call with the parties on

October 11, 2024, to discuss the status of the case. During that call,

Mr. Garcia’s counsel indicated that he might pursue relief from the

August 11, 2014, judgment in the U.S. District Court for the Southern

District of Texas. The Court is unaware, however, of counsel’s efforts on

that front and sees no reason to further delay ruling on the August 2024

Motion.

Discussion

I. General Principles of Law

A. Summary Judgment

The purpose of summary judgment is to expedite litigation and

avoid costly, time-consuming, and unnecessary trials. Fla. Peach Corp.

v. Commissioner, 90 T.C. 678, 681 (1988).

Generally, in cases that are subject to a de novo scope of review,

this Court may grant summary judgment when there is no genuine

dispute as to any material fact and a decision may be rendered as a

matter of law. Rule 121(a)(2); Sundstrand Corp. v. Commissioner, 98

T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th Cir. 1994). In such cases,

the moving party bears the burden of proving that summary judgment

is warranted. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);

Espinoza v. Commissioner, 78 T.C. 412, 416 (1982). And, in deciding

whether to grant summary judgment in such cases, we construe factual

materials and inferences drawn from them in the light most favorable

to the adverse party. Sundstrand Corp., 98 T.C. at 520.

7

As we recognized in Van Bemmelen v. Commissioner, 155 T.C. 64,

78 (2020), in cases in which the Court “must confine [itself] to the

administrative record to decide whether there has been an abuse of

discretion,” the ordinary “summary judgment standard is not generally

apt.” In those cases, “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.” Id. at 79; see also

Rule 121(j).

Our Court has not yet decided the scope of review and the

standard of review for cases arising under section 7345(e). As we

observed in Rowen, 156 T.C. at 106, until now we have had no need to

consider the scope and standard of review because “there [had been] no

dispute between the parties with respect to the evidence we should

consider . . . [and] our decision would [have been] the same whether we

reviewed the Commissioner’s certification de novo or for abuse of

discretion.” The circumstances here are different. The nature of the

evidence considered on this Motion for Summary Judgment could be

determinative to our decision, so we must decide the proper scope of

review. As explained below, we conclude that review of section 7345

certifications should occur on a new record made at the Tax Court, which

may include, where appropriate, evidence introduced at trial. 7

B. Certifications of Seriously Delinquent Tax Debts

Congress enacted section 7345 as part of the Fixing America’s

Surface Transportation Act (FAST Act), Pub. L. No. 114-94, § 32101(a),

129 Stat. 1312, 1729 (2015). We provided a comprehensive description

of FAST Act § 32101 and Code section 7345 in Rowen and need not

repeat that discussion here. See also Adams v. Commissioner, 122 F.4th

at 431–32. We focus instead on the portions of section 7345 relevant to

the dispute before us.

If the Commissioner certifies that a taxpayer owes “a seriously

delinquent tax debt,” under section 7345(a), that certification shall be

transmitted “to the Secretary of State for action with respect to denial,

revocation, or limitation of [the taxpayer’s] passport.” The

7 But, as we also explain below, the need for trials in passport cases will likely

be rare, because we expect the circumstances facing us here (where the relevant

question cannot be answered by reviewing the administrative record) to arise

infrequently.

8

Commissioner is responsible for notifying the taxpayer of the

certification. I.R.C. § 7345(d).

1. Definition of “Seriously Delinquent Tax Debt”

The term “seriously delinquent tax debt” is defined in

section 7345(b). It generally means

an unpaid, legally enforceable Federal tax liability of an

individual—

(A) which has been assessed,

(B) which is greater than $50,000, and

(C) with respect to which—

(i) a notice of lien has been filed

pursuant to section 6323 and the

administrative rights under section 6320 with

respect to such filing have been exhausted or

have lapsed, or

(ii) a levy is made pursuant to section

6331.

I.R.C. § 7345(b)(1); Adams v. Commissioner, 122 F.4th at 431. The

threshold amount described in subparagraph (B) is modified by

subsection (f) to account for inflation. The threshold amount relevant

here (i.e., the amount for the year when the section 7345 certification

was made) was $55,000. See Rev. Proc. 2021-45, § 3.59, 2021-48 I.R.B.

764, 774.

2. The Tax Court’s Role in Reviewing Section 7345

Certifications

When the Commissioner certifies that a taxpayer has a seriously

delinquent tax debt, the taxpayer may petition this Court “to determine

whether the certification was erroneous or whether the Commissioner

has failed to reverse the certification.” I.R.C. § 7345(e)(1). If we

“determine[] that [the] certification was erroneous,” we “may order the

Secretary [of the Treasury] to notify the Secretary of State that such

certification was erroneous.” I.R.C. § 7345(e)(2); Adams v.

Commissioner, 122 F.4th at 432. The statute specifies no other form of

relief that we may grant. Ruesch v. Commissioner, 25 F.4th 67, 70 (2d

9

Cir. 2022), aff’g in part, vacating and remanding in part per curiam 154

T.C. 289 (2020). 8

II. Analysis

A. Satisfied Requirements of Section 7345

Aside from interest, Mr. Garcia’s liabilities were assessed

between March 26, 2007, and August 23, 2010, and both they and the

relevant interest remain unpaid. See I.R.C. § 7345(b)(1)(A). Together,

at the time of certification in 2022, they totaled an amount far greater

than the $55,000 threshold. See I.R.C. § 7345(b)(1)(B); Rev. Proc. 2021-

45, § 3.59. With respect to each component liability, the Commissioner

filed a Notice of Lien pursuant to section 6323 and sent to Mr. Garcia a

notice of such filing. See I.R.C. § 7345(b)(1)(C)(i). Mr. Garcia requested,

and participated in, a CDP hearing in response to one of the Notices of

Lien, and it is uncontested that the time for requesting a hearing on the

others had passed. See id. And, with respect to all but one of the

liabilities, a levy had been made pursuant to section 6331. See I.R.C.

§ 7345(b)(1)(C)(ii).

The Commissioner asserts that Mr. Garcia is not paying any of

his debts pursuant to an agreement under section 6159 or 7122. See

I.R.C. § 7345(b)(2)(A). Mr. Garcia has neither challenged this assertion

nor set forth specific facts to show that a genuine dispute of fact exists

on this issue. See Rule 121(d). Likewise, collection is not suspended

with respect to Mr. Garcia. See I.R.C. § 7345(b)(2)(B).

8 Section 7345(e) reads in full as follows:

Sec. 7345(e). Judicial review of certification.—

(1) In general.—After the Commissioner notifies an

individual under subsection (d), the taxpayer may bring a civil

action against the United States in a district court of the

United States, or against the Commissioner in the Tax Court,

to determine whether the certification was erroneous or

whether the Commissioner has failed to reverse the

certification. For purposes of the preceding sentence, the court

first acquiring jurisdiction over such an action shall have sole

jurisdiction.

(2) Determination.—If the court determines that such

certification was erroneous, then the court may order the

Secretary to notify the Secretary of State that such certification

was erroneous.

10

In short, the Commissioner has demonstrated that Mr. Garcia’s

outstanding liabilities satisfy all but one of the requirements to qualify

as a “seriously delinquent tax debt” under section 7345. 9 All that

remains is to consider whether the liabilities are legally enforceable. 10

See I.R.C. § 7345(b)(1).

B. Legal Enforceability

As we have already discussed, a liability must be legally

enforceable to qualify as a “seriously delinquent tax debt.” I.R.C.

§ 7345(b)(1). Not all potential errors render a liability unenforceable.

See, e.g., Adams, 160 T.C. at 13 (“Section 7345 requires simply that the

liability ‘has been assessed,’ not that the liability ‘has been properly

assessed.’”). At a minimum, however, the phrase “legally enforceable”

requires an inquiry into whether the limitations period for collection

after assessment has expired with respect to all or part of the liability.

See Ruesch, 154 T.C. at 296 (“We are also authorized to consider whether

the tax debt ‘has been fully satisfied or has become legally

unenforceable.’ Sec. 7345(c)(2)(A). The latter would be true where the

collection period of limitations had expired. See sec. 6502(a).”); see also

Adams, 160 T.C. at 12 (“[A]lthough our opinion in Ruesch was deprived

of its precedential effect, it has not lost its persuasive value.”).

The Commissioner concedes as much. As the Motion observes,

Section 7345’s requirement that a tax liability be “legally

enforceable” refers not to the validity of the assessment,

but rather verification that the liability can still be

collected at the time a certification is made or is in effect.

For example, a tax liability would not be “legally

enforceable” if the period of limitations under I.R.C.

§ 6502(a) for collecting the tax had expired.

Resp’t’s Mot. 18. To uphold the Commissioner’s certification, therefore,

we must determine that the limitations periods for collection after

assessment have not expired.

9 Mr. Garcia does not ask us to consider, nor can we consider, the merits of his

underlying liabilities.

10 In view of the foregoing, for purposes of future proceedings, the facts

underlying our conclusion that Mr. Garcia’s outstanding liabilities satisfy all of the

requirements to qualify as a “seriously delinquent tax debt” under section 7345 (except

for the enforceability point) shall be treated “as established in the case.” Rule 121(h).

11

Section 6502 generally requires the IRS to collect a tax liability,

if at all, within ten years after the liability’s assessment. I.R.C.

§ 6502(a)(1). Interest that accrues on an unpaid tax liability must be

assessed and collected within the same period. I.R.C. § 6601(g); Treas.

Reg. § 301.6601-1(f)(1); see also Fisher v. United States, 80 F.3d 1576,

1580 (Fed. Cir. 1996); Gingerich v. United States, 78 Fed. Cl. 164, 169

n.4 (2007).

Certain conditions extend the ten-year limitations period. As

relevant here, if the United States brings an action in court to collect a

liability and obtains a judgment, the limitations period for collection is

extended until the judgment is satisfied or becomes unenforceable.

I.R.C. § 6502(a) (flush language). The Federal Debt Collection

Procedures Act of 1990, which provides “exclusive civil procedures” for

the United States “to recover a judgment on a debt,” does not provide a

default duration for judgments entered under its procedures. 28 U.S.C.

§ 3001. See generally 28 U.S.C. §§ 3001–3308. The U.S. Court of

Appeals for the Ninth Circuit has concluded that the Act’s silence

regarding judgment duration signals that judgments to which the Act

applies last indefinitely, even if state law would impose a limitation. See

United States v. Gianelli, 543 F.3d 1178, 1183 (9th Cir. 2008). The U.S.

Court of Appeals for the Fifth Circuit has reached the same conclusion,

albeit in an unpublished opinion. See FTC v. Namer, 481 F. App’x 958,

959–60 (5th Cir. 2012). In view of our disposition, we need not resolve

now the precise duration of a judgment entered under the Act.

The Commissioner asserts that the 2014 judgment extended the

limitations periods here until August 11, 2034. Resp’t’s Mot. 11, 20, 25.

The Commissioner relies on 28 U.S.C. § 3201. 11 We accept arguendo

solely for purposes of our analysis the Commissioner’s legal conclusion.

We go on to consider whether the factual foundations applicable to that

conclusion are correct.

The Commissioner assessed all but one of Mr. Garcia’s liabilities

between March 26, 2007, and August 23, 2010. Absent any extension,

the section 6502(a)(1) limitations periods for those liabilities would have

expired between March 26, 2017, and August 23, 2020, more than two

years before the Commissioner made his section 7345 certification.

11 Under that section, a judgment in an action to collect a tax liability creates

a 20-year lien on all real property of a judgment debtor. 28 U.S.C. § 3201(a), (c)(1).

That lien may be further renewed for 20 years. 28 U.S.C. § 3201(c)(2).

12

The district court entered a default judgment against Mr. Garcia

on August 11, 2014. In the Commissioner’s view, that judgment

extended the limitations periods until August 11, 2034, long after the

Commissioner’s certification. See I.R.C. § 6502(a) (flush language); 28

U.S.C. § 3201.

But Mr. Garcia asserts that he was never served in the 2014

action. Pet’r’s Resp. 1. This is not the first time that he has disputed

service in the action. His Calendar Call counsel made a similar

assertion on the record at the March 18, 2024, hearing:

[T]here is a question about whether that collection statute

is still open. My understanding is, that the main grounds

on which the collection statute was extended, was that

there was—that Mr. Garcia was never served. And there

was a judgment entered against him, and that extended it.

And Mr. Garcia says he was never served. So there’s at

least some question to explore on that.

Tr. of Hous., Tex., Hr’g on Mar. 18, 2024, at 2–3.

Mr. Garcia echoed the same point, observing: “They said they

served me, which never happened. . . . I asked for copies to see whether

I was served, or my signature, that I was at that office and . . . that never

happened . . . .” Id. at 14; see also id. (“I was unaware, and didn’t have

anything to do with [the district court suit].”).

A judgment entered without personal jurisdiction over the

defendant is void. See, e.g., Earle v. McVeigh, 91 U.S. 503, 507 (1875)

(“Standard authorities lay down the rule, that, in order to give any

binding effect to a judgment, it is essential that the court should have

jurisdiction of the person and the subject-matter; and it is equally clear

that the want of jurisdiction is a matter that may always be set up

against a judgment when sought to be enforced, or where any benefit is

claimed under it, as the want of jurisdiction makes it utterly void and

unavailable for any purpose.” (citing Borden v. Fitch, 15 Johns. 121, 141

(N.Y. Sup. Ct. 1818))); Combs v. Nick Garin Trucking, 825 F.2d 437, 442

(D.C. Cir. 1987) (“Of course, an in personam judgment entered without

personal jurisdiction over a defendant is void as to that defendant.”

(citing Thos. P. Gonzalez Corp. v. Consejo Nacional De Produccion De

Costa Rica, 614 F.2d 1247, 1255 (9th Cir. 1980))); see also Burnham v.

Superior Ct. of Cal., 495 U.S. 604, 608–09 (1990) (Scalia, J.) (plurality

opinion) (tracing the history of the rule); 10A Charles Alan Wright &

13

Arthur R. Miller, Federal Practice and Procedure § 2695 (4th ed. 2024)

(collecting authorities). “And, since service of process is the means by

which a court asserts jurisdiction to adjudicate the rights of a party, it

is uniformly held that a judgment is void where the requirements for

effective service have not been satisfied.” Combs, 825 F.2d at 442

(footnote omitted). As the Fifth Circuit has summarized the relevant

law, in cases

in which the defendant makes no appearance and the

judgment goes by default, the defendant may defeat

subsequent enforcement in another forum by

demonstrating that the judgment issued from a court

lacking personal jurisdiction. See Pardo v. Wilson Line of

Washington, Inc., 414 F.2d 1145 (D.C. Cir. 1969). Of

course, the “burden of undermining [the judgment] rests

heavily upon the assailant,” Williams v. North Carolina,

325 U.S. 226, 233–234 (1945); and, should the attack fail,

the default judgment becomes no less final and

determinative on the merits of the controversy than a

decree entered after full trial. Moyer v. Mathas, 458 F.2d

431 (5th Cir. 1972).

Hazen Rsch., Inc. v. Omega Mins., Inc., 497 F.2d 151, 154 (5th Cir. 1974)

(alteration in original); see also Ins. Corp. of Ireland v. Compagnie des

Bauxites de Guinee, 456 U.S. 694, 706 (1982) (“A defendant is always

free to ignore the judicial proceedings, risk a default judgment, and then

challenge that judgment on jurisdictional grounds in a collateral

proceeding.” (citing Baldwin v. Iowa State Traveling Men’s Ass’n, 283

U.S. 522, 525 (1931))).

If Mr. Garcia truly was not served in the 2014 district court suit,

the district court’s default judgment would be void. As a result, the

period in which the Commissioner could have collected Mr. Garcia’s

liabilities would have expired between 2017 and 2020, and thus all but

$44 of the liabilities would not be “legally enforceable” within the

meaning of section 7345(b). Therefore, we must consider whether the

district court established personal jurisdiction over Mr. Garcia in the

district court suit.

Moreover, because the Commissioner’s certification was made

after Mr. Garcia’s rights to petition the Tax Court for redetermination

of a deficiency or review of a CDP determination had expired, and

because the nonextended limitations periods would have run after

14

Mr. Garcia’s rights to petition the Tax Court expired, this is Mr. Garcia’s

first opportunity to raise the limitations inquiry at the Tax Court. Cf.

Adams v. Commissioner, 122 F.4th at 435 (prohibiting taxpayer from

challenging underlying liability in passport action when he had earlier

failed to pursue remedies at the Tax Court).

The Commissioner cites Garcin v. Commissioner, 22 B.T.A. 1027

(1931), for the proposition that the Tax Court “has previously held that

a petitioner cannot collaterally attack a prior district court judgment by

claiming there was improper service in the district court action.”

Resp’t’s Mot. 26. The Commissioner’s reliance on Garcin is misplaced.

Garcin did not involve a petitioner who sought to void a district court

judgment because the petitioner was not served in the prior action.

Rather, the Garcin petitioner sought to void a judgment against a

company with respect to which the petitioner was the sole stockholder

and a transferee. Garcin, 22 B.T.A. at 1035–36. The Garcin petitioner

maintained that, even though he himself had been served in the prior

action, as had the company’s former secretary, service problems

nevertheless rendered the judgment in that action void. Id. at 1038–39.

The Board of Tax Appeals found the circumstances insufficient to

support a successful collateral attack. Id.

Unlike the petitioner in Garcin, Mr. Garcia asserts that the

judgment entered against him is void because he himself was not served.

That challenge is entirely proper. Cf. Earle, 91 U.S. at 507 (“[I]t is

equally clear that the want of jurisdiction . . . may always be set up

against a judgment . . . where any benefit is claimed under it, as the

want of jurisdiction makes it utterly void and unavailable for any

purpose.”); United States v. Bigford, 365 F.3d 859, 873 (10th Cir. 2004)

(“[A] defendant in a [Deadbeat Parents Punishment Act] prosecution

may challenge an underlying default support order on the basis that the

state court that issued the order lacked personal jurisdiction over the

defendant.”).

C. Scope of Review Under Section 7345

In prior passport actions, it was unnecessary to resolve the proper

scope of our review of the Commissioner’s certifications. See supra

note 3 (collecting authorities). That was so because the parties did not

dispute the evidence that we should review.

15

In this case, however, the proper scope of review matters to our

disposition. If we are limited to review on the administrative record, we

would look only to the Commissioner’s record of the judgment’s entry—

a record that does not speak to the service issue Mr. Garcia raises—to

determine whether the limitations periods for collection have been

extended with respect to the liabilities underpinning Mr. Garcia’s

seriously delinquent tax debt.

On the other hand, review on a new record developed at this

Court, including any evidence introduced at a trial, would permit the

Court to consider evidence regarding whether Mr. Garcia was served in

the district court suit. 12

Section 7345 itself does not expressly set out the scope of review

applicable to certifications under section 7345(a). See I.R.C. § 7345(e).

But a careful review of the text of section 7345(e) and our Court’s other

jurisdictional provisions—including provisions related to deficiency

redeterminations, innocent spouse relief, whistleblower actions, and

collection due process review—sheds light on the proper scope in

passport actions.

1. General Principles

The Administrative Procedure Act (APA) created norms for

judicial review of agency action. See 5 U.S.C. §§ 701–706; Ax v.

Commissioner, 146 T.C. 153, 161 (2016). The Supreme Court has held

that “in cases where Congress has simply provided for review, without

setting forth the standards to be used or the procedures to be followed,

. . . consideration is to be confined to the administrative record and . . .

no de novo proceeding may be held.” United States v. Carlo Bianchi &

Co., 373 U.S. 709, 715 (1963). The general rule under the APA is that

“review of an agency decision is limited to the administrative record.”

Kasper v. Commissioner, 150 T.C. 8, 14–15 (2018) (quoting Wilson v.

12 Although we may supplement the designated administrative record with

extra-record evidence in certain circumstances in cases subject to record review, see

Berenblatt v. Commissioner, 160 T.C. 534, 549 (2023) (discussing supplements to the

administrative record in whistleblower cases); Van Bemmelen, 155 T.C. at 76 (same),

proceedings to supplement are not well suited to this case. The evidence relevant to

our inquiry (involving the circumstances relating to service on the defendant in the

district court suit) would not be of a type that the IRS should be expected to collect in

the ordinary course of carrying out its responsibilities. Moreover, evaluation of that

evidence may well turn on matters of credibility that are best resolved at a trial in

which the Court has an opportunity to observe the relevant witnesses.

16

Commissioner, 705 F.3d 980, 991 (9th Cir. 2013), aff’g T.C. Memo. 2010-

134).

But this is a default rule, and the APA’s general provisions do not

supersede specific statutory provisions. Id. at 15; see also Porter v.

Commissioner, 130 T.C. 115, 118 (2008) (reviewed). “When Congress

enacted the APA to provide a general authorization for review of agency

action in the district courts, it did not intend that general grant of

jurisdiction to duplicate the previously established special statutory

procedures relating to specific agencies.” Bowen v. Massachusetts, 487

U.S. 879, 903 (1988).

2. Deficiency Redeterminations

In proceedings to redetermine deficiencies brought under

section 6213, the Tax Court reviews a new record created by the parties.

Kasper, 150 T.C. at 15 (“One conspicuous exception to the default ‘record

rule’ is our deficiency jurisdiction under section 6213(a) . . . .”). In the

deficiency context, Congress instructs the Tax Court to make a

“redetermination” of the deficiency proposed by the Commissioner.

I.R.C. § 6213(a). Congress first granted the Board of Tax Appeals (the

predecessor to the Tax Court) jurisdiction to “redetermine” deficiencies

and additions to tax in 1924. Porter, 130 T.C. at 119 (citing Ewing v.

Commissioner, 122 T.C. 32, 38 (2004), rev’d in part, vacated in part on

other grounds, 439 F.3d 1009 (9th Cir. 2006)). Since 1926, we have also

had jurisdiction to “determine” overpayments. Id.

These determinations and redeterminations have always been

made on a new record. Id.; Greenberg’s Express, Inc. v. Commissioner,

62 T.C. 324, 327–28 (1974); see also Clapp v. Commissioner, 875 F.2d

1396, 1403 (9th Cir. 1989); Raheja v. Commissioner, 725 F.2d 64, 66 (7th

Cir. 1984), aff’g T.C. Memo. 1981-690; Jones v. Commissioner, 97 T.C. 7,

18 (1991). In the deficiency context, instructions by Congress to

“determine” or “redetermine” a deficiency created a “special statutory

procedure” related to the tax laws, in which the parties prepare a new

record. See, e.g., Porter, 130 T.C. at 119.

17

3. Innocent Spouse Relief

Before Congress adopted section 6015(e)(7) in 2019, 13 the Tax

Court also considered petitions for relief from joint and several liability

by reviewing a new record. Porter, 130 T.C. at 125.

When this Court initially determined whether it should review

determinations of relief from joint and several liability on the

administrative record, we paid particular attention to Congress’s use of

the word “determination” in section 6015:

We can presume that in 1998 when Congress chose

to use the word “determine” in section 6015, it did so in full

awareness of our long history of de novo review. If

Congress includes language from a prior statute in a new

statute, courts can presume that Congress intended the

longstanding legal interpretation of that language to be

applied to the new statute. Commissioner v. Estate of Noel,

380 U.S. 678, 680–681 (1965); United States v. 101.80

Acres, 716 F.2d 714, 721 (9th Cir. 1983). The use of the

word “determine” in section 6015(e)(1)(A) suggests that

Congress intended that we conduct trials de novo in

making our determinations under section 6015(f).

Porter, 130 T.C. at 119 (footnote omitted). That is, we read the verb

“determine” to indicate review on a record created after trial at the Tax

Court.

4. Whistleblower Awards

Congress has also charged the Tax Court with hearing appeals of

determinations regarding whistleblower awards under

section 7623(b)(4). Unlike in proceedings for redetermination of a

deficiency, a determination of an overpayment, or a determination

concerning innocent spouse relief, in the whistleblower context the Tax

13 Section 6015(e)(7), titled “Standard and scope of review,” provides that “[a]ny

review of a determination made under this section shall be reviewed de novo by the

Tax Court and shall be based upon—(A) the administrative record established at the

time of the determination, and (B) any additional newly discovered or previously

unavailable evidence.” See generally Thomas v. Commissioner, 160 T.C. 371 (2023)

(reviewed).

18

Court reviews the Whistleblower Office’s determination on the

administrative record. Kasper, 150 T.C. at 20.

When deciding its scope of review in whistleblower award

proceedings, the Court focused on Congress’s choice to use the word

“appeal” rather than “determine” in the provision that gives jurisdiction

to the Court. Id. at 17 (“If Congress’s use of ‘determine’ was as important

as our caselaw tells us it was, then the use of ‘appeal’ in a jurisdictional

grant is telling.”). In contrast to statutes governing deficiency cases and

relief from joint and several liability cases, the whistleblower statute

relies on the APA’s default rule. Id. at 18.

5. CDP Cases

In collection due process cases, Congress permits taxpayers to

seek “review” of an administrative determination at the Tax Court. 14

I.R.C. § 6330(d)(1). The Tax Court has previously held that it is not

required to apply a limited scope of review and may accept evidence

outside the administrative record in CDP cases. See Robinette v.

Commissioner, 123 T.C. 85, 101 (2004), rev’d, 439 F.3d 455 (8th Cir.

2006). But the U.S. Courts of Appeals for the First, Eighth, and Ninth

Circuits have concluded that, in CDP cases that are subject to an abuse

of discretion standard, our review is limited to the administrative

record. See 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; Murphy v. Commissioner, 469 F.3d 27, 30–31

(1st Cir. 2006), aff’g 125 T.C. 301 (2005); Robinette v. Commissioner, 439

F.3d at 461–62.

6. Determinations Regarding Section 7345

Certifications

Section 7345(e) authorizes the Court “to determine whether the

certification was erroneous or whether the Commissioner has failed to

reverse the certification.” I.R.C. § 7345(e)(1) (emphasis added). And if

the Court “determines that such certification was erroneous,” the Court

may issue certain orders to the Secretary of the Treasury. I.R.C.

§ 7345(e)(2) (emphasis added).

In view of the history outlined above, we take Congress’s choice

of the word “determine” to be dispositive of the question of the proper

14 Before December 18, 2015, section 6330 allowed taxpayers to “appeal” the

IRS’s determination to the Tax Court.

19

scope of review. As we have recognized before, “[i]f Congress includes

language from a prior statute in a new statute, courts can presume that

Congress intended the longstanding legal interpretation of that

language to be applied to the new statute.” Porter, 130 T.C. at 119 (first

citing Commissioner v. Estate of Noel, 380 U.S. at 680–81; and then

citing 101.80 Acres, 716 F.2d at 721). Our decision in Porter was

rendered in 2008, long before Congress adopted section 7345(e) in 2015.

And the decisions involving our deficiency and overpayment jurisdiction

go much further back. Given these guideposts, we take Congress’s

choice to refer to our task as “determin[ing] whether the certification

was erroneous” to mean that (where necessary) we must make that

determination based on a record developed in this Court, including

(where appropriate) any evidence introduced at a trial, not simply the

record available to the Commissioner during the administrative

process. 15

We note, however, that in practical terms our holding is narrow

and unlikely to affect a great number of passport cases. As the Court’s

history with passport cases over almost a decade demonstrates, in most

cases under section 7345(e), the scope of review does not matter; the

outcome of the cases does not turn on the nature of the evidence we

should consider. Put another way, in most passport cases, there is no

need to look beyond the administrative record to resolve the issues in

dispute. See, e.g., Meduty, 160 T.C. at 529; Adams, 160 T.C. at 5–6

(2023); Rowen, 156 T.C. at 106; Pfirrman, T.C. Memo. 2025-22, at *4–6;

Belton v. Commissioner, T.C. Memo. 2023-13, at *9–10. The answer to

the contested matters in such cases is found in the IRS records with

respect to which there is unlikely to be a genuine factual dispute.

Accordingly, in such cases we anticipate no need to provide a taxpayer

an opportunity to introduce evidence at trial.

Moreover, the nature of the challenges that can be made in a

passport action is limited. As we have repeatedly observed, “we do not

have jurisdiction to review the liabilities underlying the certification of

a seriously delinquent tax debt.” Adams, 160 T.C. at 12 (citing Ruesch,

154 T.C. at 295–98 (reasoning that the text of section 7345(e)(1) contains

15 This conclusion is consistent with our holding in Kasper, 150 T.C. at 17,

where we found Congress’s use of the word “appeal” significant to the conclusion that

review was intended to occur on the administrative record. Here, of course, Congress

provided not for an appeal but for a determination.

20

no such jurisdictional grant)). Our holding here does not alter that

conclusion.

But where, as here, contested facts outside the record make a

difference to our determination, those facts must be found with the

benefit of a trial.

D. Service in the District Court Suit

Having considered the proper scope of review applicable to

Mr. Garcia’s passport action, we next consider his factual allegation—

that he was never served in the district court suit. Because service of

process touches on the validity of the August 11, 2014, default judgment

entered against Mr. Garcia, whether Mr. Garcia was served is a genuine

issue of material fact that prevents us from granting the Commissioner’s

Motion for Summary Judgment.

The Commissioner provided, in his First Supplement to Motion

for Summary Judgment, the declaration of Susan K. Bollman, senior

attorney at the IRS Office of Chief Counsel. Ms. Bollman attached a

“copy of the return of service attesting to the service of the summons and

complaint on petitioner” to her declaration. Signed by a revenue officer,

the return of service suggests that Mr. Garcia was served personally at

an IRS office in Houston.

Mr. Garcia’s response to the Commissioner’s Motion for Summary

Judgment, however, alleges that he “never received a notice of any kind

that the USA had filed a Complaint against him in District Court.”

Pet’r’s Resp. 1. As to the return of service, he asserts that “there is

absolutely no evidence that it was signed.” Id. Mr. Garcia made similar

allegations in open court at the March 2024 hearing.

The Court’s role, when considering a Motion for Summary

Judgment, is not to weigh competing evidence. Cf. Sundstrand Corp.,

98 T.C. at 520 (“If there exists any reasonable doubt as to the facts at

issue, the motion must be denied.”). Mr. Garcia’s Response, read in the

light of his statements at the hearing, raises a genuine issue of fact as

to whether he was served in 2014. Trial testimony would be proper to

resolve this issue. And, because this issue could determine whether

Mr. Garcia’s liabilities are “legally enforceable” within the meaning of

section 7345(b), we may not grant the Commissioner’s Motion.

21

III. Conclusion

For the reasons stated above, the Commissioner’s Motion for

Summary Judgment, as supplemented, will be denied.

To reflect the foregoing,

An appropriate order will be issued.

Reviewed by the Court.

KERRIGAN, C.J., and BUCH, NEGA, PUGH, ASHFORD,

URDA, COPELAND, JONES, GREAVES, MARSHALL, WEILER,

WAY, LANDY, ARBEIT, GUIDER, JENKINS, and FUNG, JJ., agree

with this opinion of the Court.